2015 (10) TMI 1837 - AT - Central Excise

Levy of Penalty under Rule 26 on co-noticee - Adjudicating authority dropped the proceedings initiated by the Show Cause Notice dt.25.01.2012 against the main noticee - Held that - Person (main noticee) had paid the duty and interest and informed the Department by letter dt.08.02.2011. Thereafter, the impugned Show Cause Notice dt.25.01.2012 was issued to the main noticee and the Appellants herein. The Adjudicating authority had dropped the proceedings initiated in the Show Cause Notice, extending the benefit under Section 11A (2B) of the said Act. - proceedings initiated under the Show Cause Notice dt.25.01.2012, has been dropped by the Adjudicating authority by invoking Section 11A(2B) of the Act, the imposition of penalty against the Appellant herein cannot be sustained. Section 11A(2B) categorically provides that no notice under sub-section (1) of Section 11A shall be served where the duty and interest paid by the person. Hence, imposition of penalty on the co-noticee cannot be sustained for the reason that the notice issued under Section 11A(1) cannot be served. Penalty on the Appellant was imposed under Rule 26 of Central Excise Rules, 2002. Rule 26 of the said Rules provides any person who acquires possession of, or is in any concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing, or in any manner deals with any excisable goods which he knows are liable to confiscation under the Act or Rules, shall be liable to penalty. In the present case, there is no demand of duty and confiscation of goods and therefore, the imposition of penalty on the Appellant is not warranted. - Decided in favour of appellant.

Summary

Issues:
Imposition of penalty under Rule 26 of Central Excise Rules, 2002 against the co-noticee based on the dropped proceedings against the main noticee under Section 11A(2B) of the Central Excise Act, 1944.

Analysis:
The appeal was filed against the penalty of Rs. 5 lakhs imposed under Rule 26 of Central Excise Rules, 2002. The Appellant argued that since the proceedings against the main noticee were dropped under Section 11A(2B) of the Act, the penalty against the co-noticee cannot be sustained. The Adjudicating authority invoked Section 11A(2B) and dropped the proceedings against the main noticee. The Appellant contended that no proposal for confiscation of goods existed, thus the penalty was unwarranted.

The Revenue's representative cited precedents where payment of duty, interest, and penalty by the main noticee did not conclusively absolve the co-noticee. The Tribunal's decisions were referenced to support the argument that the penalty against the co-noticee could still stand despite the main noticee's actions. It was emphasized that the case did not fall under Section 11A(2B) due to the substantial duty demand exceeding Rs. 4 crores.

Upon reviewing the records, it was noted that the Adjudicating authority had dropped the proceedings against the main noticee under Section 11A(2B) of the Act. The penalty imposed on the co-noticee was based on Rule 26 of the Central Excise Rules, 2002. The Adjudicating authority justified the penalty by highlighting the co-noticee's involvement in dealing with excisable goods liable for confiscation.

The judgment delved into the relevant sections of the Central Excise Act, particularly Section 11A. It was clarified that Section 11A(2B) provides a specific scenario where no notice shall be served if the duty is paid before the notice is issued. In this case, the main noticee had paid the duty and interest before the Show Cause Notice was issued, leading to the proceedings being dropped under Section 11A(2B).

The judgment concluded that since the penalty was imposed under Rule 26 of the Central Excise Rules, 2002, and there was no demand for duty or confiscation of goods, the penalty on the co-noticee was not justified. The imposition of penalty against the Appellant was set aside, and the appeal was allowed.