TaxTMI 
TaxTMI 
2022 (7) TMI 820
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....ho are the present appellants) of Shree Raj Pan Masala Pvt Ltd. and also some other persons being transporters etc. The SCN was adjudicated and duty liability was confirmed on Shree Raj Pan Masala Pvt Ltd and also penalty was levied on the manufacturer. Penalty was also imposed on these co-appellants/noticees. The matter had reached before this Tribunal in earlier round, being Appeal No. E/2338/2011 alongwith other appeals, including appeals by the present appellants. A Division Bench of this Tribunal vide final order No. 54326-54333/2017 dated 23/06/2017 observed that the appellant Shree Raj Pan Masala Pvt Ltd is not contesting the demand on merits and it was pointed out that they have paid 1.25 crores before issuing of show cause notice. The appellant had further prayed for consideration of benefit of closure under the newly inserted provisions of sub-Section (1A) in Section 11A r/w the proviso under sub-Section 2 to Section 11A (by Taxation Laws Amendment Act, 2006 w.e.f. 30/07/2006). This tribunal allowed the appeal by way of remand observing as follows: - "5. We note that the said provisions are available during the relevant period in respect of the main appellant/ assessee.....
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....26 for keeping/ concealing/ selling the excisable goods. Thus, from careful study of above provisions, I observe that in the present matter the notice covered under the purview of the wordings "such person and other persons" is only M/s Shree Raj Pan Masala Pvt Ltd, who was issued show cause notice under section 11A and who had paid the duty along with interest and Penalty before the SCN. I further find that notice no. 1 had paid Rs. 1,00,00,000/-+Rs. 25,97,575/-= Rs. 1,25,97,575/- during the investigations, much before the issue of SCN. Further, Additional Commissioner, Central Excise Commisionerate, Jaipur-II in a different case vide his Order-in-Original No. 221/CE/JPII/ 2011-ADC dated 19.04.2011, in respect of M/s Shree Raj Pan Masala Pvt. Ltd., Jodhpur, has already appropriated Rs. 21,48,030/- (out of the amount of Rs. 1,00,00,000/- deposited by them vide GAR-7 challan dated 15.4.08). Thus, the remaining amount available is Rs. 1,04,49,545/- (Rs. 1,25,97,575/- (-) Rs.21,48,030/-) for adjusting in Govt. Account against their above liability. I observe that this amount of Rs. 1,04,49,545/- would fully cover the demand of Rs. 59,77,881/-(duty) + Rs. 14,94,470/- (25% penalty) + Rs....
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....ed to be conclusive as to the matters stated therein. 6. Thus from a plain reading of the provisions of Section 11A, it is evident that the closure is applicable not only to the manufacturer (such person) but also to other persons/co-noticees like directors, transporters, employees, etc etc. 7. Learned Counsel for the appellant also placed reliance on the ruling of the Division Bench of this Tribunal in the case of Orbit Jewellers Vs. Commissioner of Customs 2016 338 ELT 620 wherein, under similar facts and circumstances, as the court below had not allowed closure in respect of the co- noticees/appellants, this Tribunal considering the CBEC Circular No. 831/8/2006- CEX dated 26/07/2006 have held as follows; "12. On going through the proviso to said Section, we find that the said section is a beneficial piece of legislation with intention to reduce the litigation proceedings where the noticee satisfies the condition of the said section. As has already been observed that the said provision of law provides deeming concept of closure of the proceeding except the proceeding under provision of Sections 135, 135A and 140 on full compliance of the main clause of Section 28(1A). There i....
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....d in the context of the amended provision of Section 11A of the Central Excise Act, 1944, the same would equally apply to the identically amended provision of Section 28. We find that the Tribunal has taken note of the said provision as also the Board's Circular in various decisions and has categorically held that on compliance with the amended provision, as regards the deposit, no further proceeding can continue before the adjudicating authority. Reference can be made to the Tribunal decision in the case of Sonam Clock Pvt. Ltd. v. C.C.E., Rajkot - 2012 (278) E.L.T. 263 (Tri.-Ahmd.) as also to another decision of the Tribunal in the case of C.C.E., Vapi v. Technovinyl Polymers Limited -2013 (298) E.L.T. 50 (Tri.-Ahmd.). Further in the case of C.C.E., Raipur v. Abir Steel Rolling Mills - 2013 (296) E.L.T. 90 (Tri.-Del.), it was held that facilities provided in terms of the provision of Section 11A were to settle the tax dispute immediately besides aiding in expeditious collection of dues. The proviso to Section 11A(2) of the Central Excise Act, 1944 is to the effect that proceedings in respect of "such person and other persons" to whom the notice is served, deemed to be conclusive ....
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....e agree with the ld. Advocate appearing for the appellants that M/s. Omkar Jewellery and M/s. Orbit Gold having deposited the full amount of duty, interest and 25% of the penalty, no further proceedings were required to be continued in terms of the provisions of Section 28(1A), the first proviso to Section 28(1A), the impugned order has no leg to stand. The same is accordingly set aside. All the appeals are allowed with consequential relief to the appellants." 8. Thus it is further urged that the Division Bench have distinguished and overruled the ruling of the Single Bench of this Tribunal in the case of Anand Agarwal (supra) and have clearly held that the benefit of conclusion, once it is extended to the manufacturer/such person, is also available to the conoticees/ appellants/other persons. Accordingly, prays for allowing the appeals with consequential relief. 9. Learned Authorised Representative for revenue relies on the impugned order. 10. Considering the rival contentions, I find that there is no ambiguity in the provisions as contained in Section 11A (1A) r/w proviso to sub-Section (2). Admittedly, in the facts of the present case, the manufacturer - Shree Raj Pan Masala ....