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TMI Blog2011 (7) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. - E/1538/10 - - - Dated:- 22-7-2011 - Hon ble Mr. B.S.V. Murthy, Member (Technical) Appellant : Shri N.K. Tiwari, Cons. Respondent : Shri S.K. Mall, SDR Per: Mr. B.S.V. Murthy: M/s. Bodal Chemicals Ltd., Ahmedabad is engaged in the manufacture of Dyes Intermediates falling under Chapter 32 of Central Excise Tariff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e firm are treated as closed, proceedings in respect of all persons concerned consequently issued show cause notice are also required to be closed. Accordingly he submits that the proceedings against the appellant are required to be dropped. Learned DR submitted that the very same ground had been taken before the original adjudicating authority and was already rejected. This was not further taken up before the learned Commissioner (Appeals) and before the Commissioner (Appeals) the ground taken was that the director was not aware of the clandestine removal or receipt of payment in cash etc. and he was not concerned with the goods and therefore no penalty could have been imposed on him. Therefore since the ground has already been canvassed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest and penalty is paid, proceedings against all the noticees are deemed to have been concluded and therefore no proceedings could have been initiated. The submission is since duty, interest and penalty has been paid, action against Shri Rameshbhai P. Patel may be waived. This is virtually seeking a lenient view as regards penalty on the director and not a legal submission that proceedings could not have been continued. Nevertheless I would also consider the submissions made by the learned DR that the original adjudicating authority had considered the correctness of initiation of proceedings against Shri Rameshbhai P. Patel as per the provisions of Section 11A(2) of Central Excise Act, 1944. On going through para 27 to para 31 of the Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of Section 11A(2) of Central Excise Act, 1944, no proceedings can be initiated against Shri Rameshbhai P. Patel was not taken up before Commissioner (Appeals) at all. Under these circumstances, question arises as to whether the submission that in the light of the decision of the Tribunal cited by the learned consultant penalty imposed on the appellant has to be set aside. Since the applicability of provisions of Section 11A(2) was not raised before the learned Commissioner (Appeals) and the decision of the Tribunal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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