TMI Blog2018 (5) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... . 61992-61993/2018 - Dated:- 19-3-2018 - Mr. Devender Singh, Member (Technical) Present for the Appellant(s): Mr. Tarun Kumar, A.R. Present for the Respondent(s): None ORDER Per : Devender Singh These two appeals have been filed by the Revenue against the impugned order dt. 30.11.2009 passed by the Commissioner (Appeals). 2. Sh. Naveen Bindal, Advocate, whose name appears in the cause list for respondent no.2 and who was present in the Court, at the outset, clarified that though his name is appearing in the cause list, he is no longer representing the respondent no.2 M/s Kumar Abhishek Engineering Company. 3. On the matter being called, there is none for the respondents. It is seen that in the last three da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e before Settlement Commission. The amount of duty and interest was also ordered to be recovered from the sum of Rs. one crore already lying deposited by M/s Ind-Swift Ltd. The two respondents in these appeals did not approach the Settlement Commission. Their cases were adjudicated and penalties were imposed on them by adjudicating authority. In appeals filed by them, the Commissioner (Appeals) has set aside the penalties on the ground that since immunity of penalty has been granted to the main accused by the assessee in the instant case, penalties under Rule 25 of Central Excise Rules to the present respondents, who have preferred appeal, is also not warranted. The Commissioner (Appeals) relied on the order passed by the CESTAT, Mumbai in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 25 of Central Excise Rules, 2002. In appeal, the Commissioner (Appeals) has set aside the penalties on both of the present respondents on the ground that the offence committed by them does not warrant penalties under Rule 25 and the main accused in the instant case has been granted immunity from penalties and prosecution. The last finding is based on the Tribunal s judgment in the case of Shri S.K. Colombowala (supra). 8. As rightly pointed out by Ld. A.R., I find that the issue pertaining to waiver of penalty on the co-noticees, who do not approach the Settlement Commission and undergo the adjudication process has been decided by the judgment of this Tribunal in the difference of opinion case of Mamta Garg (supra), wherein the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has considered the judgment of this Tribunal in the case of Shri S.K. Colombowala (supra). 9. It has been held by this Tribunal in the case of Larsen Toubro Ltd. vs. CST, Delhi 2013 (32) STR 410 (Tri.-Delhi) that wherever pursuant to a conflict opinion in a decision by a Division Bench, the conflict is referred to a Third Member of this Tribunal for resolution, the resultant judgment must be considered the judgment of a Full Bench, as if it were a judgment of a Larger Bench (three Ld. Members) sitting en banc. 10. In view of the above and by following the judgment in the case of Mamta Garg (supra), I hold that the appeals filed by present respondents can not be allowed on the ground that main accused got immunity from the Set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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