2011 (7) TMI 342 - AT - Central Excise

Demand and penalty - Provisions of Section 11A(2) - Search - clandestine removal - Shri Rameshbhai P. Patel (Director of M/s. Bodal Chemicals Ltd.)was seeking waiver of action against him since M/s. Bodal Chemicals Ltd. had already paid duty, penalty and interest - There is no specific submission that under Section 11A(2), once duty, interest and penalty is paid, proceedings against all the noticees are deemed to have been concluded and therefore no proceedings could have been initiated - Since the applicability of provisions of Section 11A(2) was not raised before the learned Commissioner (Appeals) and the decision of the Tribunal in the in the case of CCE Chandigarh Vs. Vikash Garg 2011 (1) TMI 129 - CESTAT, NEW DELHI was not available at the time when impugned order was passed the matter is required to be remanded to him for fresh consideration in the light of the judgment of the Tribunal cited by the learned consultant - Accordingly, the impugned order is set aside and matter is remanded to the Commissioner (Appeals) for fresh consideration.

Summary

Issues involved:
1. Imposition of penalty on the director under Section 11A(2) of the Central Excise Act, 1944.

Analysis:
1. The case involved the imposition of a penalty on the director of a company engaged in the manufacture of Dyes & Intermediates for clandestine removal. The company paid the duty amount with interest before the issuance of the show cause notice. The issue was whether the penalty imposed on the director was justified despite the company having paid duty, interest, and 25% of the duty as penalty, invoking Section 11A(2) of the Central Excise Act, 1944.

2. The appellant contended that once the company paid the required amounts, proceedings against all individuals involved should be concluded. The original adjudicating authority rejected this argument, stating that the director was not aware of the clandestine activities. The Commissioner (Appeals) upheld the penalty on the director, leading to the appeal. The Tribunal noted that the issue of whether Section 11A(2) applied was not raised before the Commissioner (Appeals) and decided to remand the matter for fresh consideration in light of a relevant Tribunal judgment.

3. The Tribunal analyzed the submissions made by both parties and found that the director's request for waiver was based on the payments made by the company, seeking leniency rather than a legal argument to conclude proceedings. The original adjudicating authority's decision to impose a penalty on the director was based on the involvement in the clandestine activities, not on the application of Section 11A(2). Since the issue of Section 11A(2) applicability was not raised before the Commissioner (Appeals), the Tribunal set aside the order and remanded the case for fresh consideration.

4. The Tribunal clarified that the original adjudicating authority's decision was based on the merits of the case and not on the provisions of Section 11A(2). As the issue was not raised before the Commissioner (Appeals) and the relevant Tribunal judgment was not available during the initial proceedings, the case was sent back for a reevaluation. The appellant would have the opportunity to present their case before a final decision was made.

This detailed analysis highlights the key arguments, decisions, and the Tribunal's reasoning in the judgment regarding the imposition of a penalty on the director under Section 11A(2) of the Central Excise Act, 1944.