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Kedarnath Dubey, Pramod Singh, AL-Karim Scrap Traders Pvt Ltd, Devendra Pal Tank, Parmeshwari Steels Versus Commissioner of Central Excise, Nashik

2016 (5) TMI 1120 - CESTAT MUMBAI

Waiver of penalty imposed - Rule 26 of the Central Excise Rules, 2002 - Main noticee against whom duty, interest and penalty was proposed have paid duty, interest and 25% of penalty within one month from the date of show cause notice, therefore, the proceedings against the present appellant should also stands concluded along with the main assessee - Held that:- the duty liability has been discharged after the issuance of show cause notice. In my view, the benefits which are available to an a .....

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f the amount as that the entire order-in-original is set aside as the first appellate authority has considered the extension of benefits of Section 11A to the assessee only on the ground that he has paid the amount in full. If the assessee would not have paid this amount, this benefit would not have been extended to him. Therefore all the appellants are entitled for the immunity as per proviso to Section 11A (2) and accordingly they are entitled for the waiver of penalty imposed on them under Ru .....

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A No. AKP/NSK/22 to 29/2011 dt. 31.1.2011 passed by the Commissioner (Appeals) Central Excise & Customs, Nashik. 2. The issue involved in the present case is that if the main appellant, against whom, the demand of excise duty, interest and penalty were proposed, discharge the liability of duty, interest and 25% of penalty within one month from the date of show cause notice whether the proceedings against Co-noticees in the same show cause notice shall stand concluded and whether they are not .....

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assessee and not to the noticees. On the other co-notice the penalty under Rule 26 of Central Excise Rules 2002 was proposed by way of the same show cause notice. Accordingly, the Ld. Commissioner held that the proceedings against the main assessee against whom the demand of duty was proposed can only be conclusive and not in respect of other co-noticees. Aggrieved by the impugned order the appellants are before me. 3. Shri Vinay Sejpal, Shri Ashok Kumar Singh and Shri Mahesh Raichandani, Ld. Co .....

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only such noticee against whom duty demand was raised is to be treated as such person to whom the show cause notice was issued under Section 11A(1) of the Act. The other Co-noticees to whom the penalty under Rule 26 was proposed, the show cause notice to these persons also were under Section 11A(1) only, therefore when the main assessee against whom the duty demand was proposed, pays duty, interest and 25% penalty, the proceedings against such person as well as all other persons involved in the .....

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ngs Pvt. Ltd. Ravindra C Aggarwal Vs. Commissioner of Central Excise, Thane-I 2015-TIOL-396-CESTAT-MUM (v) Tikam P. Bhojwani Vs. Commissioner of Central Excise, Ahmedabad 2011 (272) E.L.t. 88 (Tri-Ahmd.) (vi) Commissioner of Central Excise & Customs, Aurangabad, Nasik-II Ambika Waste Management Pvt. Ltd. & Others Order No. A/3778-3781/15/SMB dt. 23.11.2015 (v) Commissioner of C.Ex., Raipur Vs. Jai Ambey Metal Works Pvt. Ltd. 2013 (295) E.L.T. 453 (Tri. - Del.) (vi) Commissioner of Centra .....

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view (1) Commissioner of Central Excise Raipur Vs. Shri Anand Agarwal & Others 2013-TIOL-26-CESTAT-DEL (2) Shri Ghanshyamdas C. Goyal Vs. Commissioner of Central Excise, Aurangabad 2015-TIOL-756-CESTAT-MUM. 5. I have carefully considered the submissions made by both the sides. I find that the appellants sought waiver of penalty imposed under Rule 26 of Central Excise Rules, 2002 on the ground that the main noticee in the show cause notice against whom duty, interest and penalty was proposed .....

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posed, proceedings their against shall also be concluded. Accordingly, no penalty can be imposed in terms of proviso to Section 11A(2) of the Central Excise Act. The operative portion of the various judgments are reproduced below: (i) In the case of Jai Ambey Metal Works Pvt. Ltd. (supra)held that - 7. In the present case, the Revenue's main contention is that the proceedings under Section 11A(2) of Central Excise Act are not concluded. I find that the Commissioner (Appeals) in the impugned .....

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ame show cause notice vide order dated 11-6-2012 in Appeal No. E/978/2010 held that proceedings under Section 11A(2) are to be treated as closed . (ii) In the case Deepak Patel (supra) held that - 2. The counsel for the respondent submits that as per the provisions of the first proviso to Section 11A(2) when a case is against an assessee is settled under Section 11A(1A), no further proceedings is maintainable against any other person to whom notice is issued under Section 11A(1). I find that the .....

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11A(1A) of Central Excise Act, 1944 read with proviso to sub-section (2) of the said Section 11, very clearly indicates that if an assessee discharges the entire duty liability along with interest and 25% of the amount of duty liability, then the proceedings comes to an end. Provisions also indicate that there is no need for issuance of show cause notice. It is pointed out by the learned DR that in this case, the duty liability has been discharged after the issuance of show cause notice. In my v .....

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by the Revenue that assessee may seek refund of the amount as that the entire order-in-original is set aside as the first appellate authority has considered the extension of benefits of Section 11A to the assessee only on the ground that he has paid the amount in full. If the assessee would not have paid this amount, this benefit would not have been extended to him. 7. In my view, the issue is covered by the decision of the Division Bench of the Tribunal in the case of Sonam Clock Pvt. Limited .....

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