2015 (4) TMI 995 - AT - Central Excise

Imposition of penalty - Whether the penalty under Rule 26 on the co-appellant can be waived if main appellant against whom duty interest and penalty has been confirmed, has paid duty, interest and 25% penalty in terms of proviso to Section 11A(2) - Held that - Immunity provided under the proviso is available to only those persons to whom the notice is issued under Section 11A(1A). In the present case penalty on the appellant was proposed in the notice and imposed in the impugned order under Rule 26 of Central Excise Rules, 2002. Therefore the appellant is not covered under the category of the other persons as mentioned, under the proviso. Therefore in my view the immunity provided under the proviso is not applicable to the present appellant. From the said proviso, I am of the opinion that the term person and any other persons used in the proviso under Section 11A(2) means if in any case in the common show cause notice, if the duty demand was raised against more than one person under Section11A(1A) and duty interest and 25% of penalty proposed in the show cause notice is paid by both the person then against those both the persons proceedings will stand concluded, but if any other person on whom only penalty under Rule 26 of Central Excise Rules, 2002, or any other person is proposed then the proviso to Section 11A(2) is not applicable - However, considering the fact that total amount of duty confirmed is ₹ 2,79,803/- and also on the fact that entire duty, interest and 25% of penalty has been paid by the main appellant. I am of the view that the personal penalty of ₹ 50,000/- imposed on the appellant is higher side, therefore I reduce penalty of ₹ 50,000/- to ₹ 25,000 - Following decision of Commissioner of Central Excise, Raipur vs. Anand Agrawal 2013 (2) TMI 569 - CESTAT NEW DELHI - Decided partly in favour of assessee.

Summary

Issues Involved:
1. Whether the penalty under Rule 26 of the Central Excise Rules, 2002, on the co-appellant can be waived if the main appellant has paid duty, interest, and 25% penalty in terms of the proviso to Section 11A(2).

Issue-wise Detailed Analysis:

1. Applicability of Proviso to Section 11A(2) for Waiver of Penalty:
The primary issue in this case is whether the penalty imposed on the co-appellant under Rule 26 of the Central Excise Rules, 2002, can be waived if the main appellant has paid the required duty, interest, and 25% penalty as per the proviso to Section 11A(2). The appellant argued that since the main appellant fulfilled these obligations, the penalty on the co-appellant should also be waived.

The tribunal clarified that the immunity under the proviso to Section 11A(2) is available only to those persons to whom the notice is issued under Section 11A(1A). The appellant was penalized under Rule 26, which is distinct from the provisions of Section 11A(2). Therefore, the appellant does not fall under the category of "other persons" mentioned in the proviso to Section 11A(2). The tribunal referred to the case of Commissioner of Central Excise, Raipur vs. Anand Agrawal to support this interpretation, emphasizing that the provisions of Section 11A(2) apply only to those who are directly liable for the duty and not to those penalized under Rule 26.

2. Interpretation of "Person" and "Other Persons" in Proviso to Section 11A(2):
The tribunal examined the terms "person" and "any other persons" used in the proviso to Section 11A(2). It concluded that these terms refer to individuals or entities directly liable for the duty under Section 11A(1A) and who have paid the duty, interest, and 25% penalty. The tribunal clarified that the immunity does not extend to individuals penalized under Rule 26, as their penalties are independent of the duty payment obligations under Section 11A.

3. Analysis of Rule 26 of Central Excise Rules, 2002:
The tribunal analyzed Rule 26, which prescribes penalties for certain offenses, including dealing with excisable goods liable to confiscation. It highlighted that the penal provisions of Rule 26 are independent of the duty recovery provisions under Section 11A. The tribunal emphasized that the penalties under Rule 26 are not covered by the immunity provided in the proviso to Section 11A(2). This distinction was crucial in determining that the co-appellant is not entitled to the immunity claimed.

4. Reduction of Penalty:
Considering the total amount of duty confirmed and the fact that the main appellant had paid the duty, interest, and 25% penalty, the tribunal found the penalty of Rs. 50,000/- imposed on the co-appellant to be on the higher side. Therefore, the tribunal reduced the penalty from Rs. 50,000/- to Rs. 25,000/-.

Conclusion:
The tribunal concluded that the immunity under the proviso to Section 11A(2) does not extend to individuals penalized under Rule 26 of the Central Excise Rules, 2002. The appeal was partly allowed by reducing the penalty imposed on the co-appellant from Rs. 50,000/- to Rs. 25,000/-.