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TMI Blog2013 (7) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... in [2001 (3) TMI 183 - CEGAT, COURT NO. II, NEW DELHI] has held that when the matter has been settled by the settlement commission against the main party and settlement commission has granted immunity to him from penalty, the co-occured cannot be penalized under Rules, 209A of Central Excise Rules, 1944 as he cannot face a penalty greater than the penalty on the main accused – Decided in favor of assessee. - Appeal No. E/777/2010-EX (SM) - Final Order No. 56917/2013-SM(BR)(PB) - Dated:- 5-6-2013 - Shri Rakesh Kumar, J. For the Appellant: Sh. R.K. Mathur, DR For the Respondent: Sh. A.Jaju, Advocate JUDGEMENT Per Rakesh Kumar: The respondent is a General Manager of M/s. Balaji Loha Pvt. Ltd., Raipur, manufacturer of M.S. Angles, M.S. CTD bars, M.S. Rounds, M.S. Squares, etc. chargeable to central excise duty under Chapter 72 of the First Schedule to the Central Excise Tariff. On the basis of certain documents recovered from the premises of M/s. Balaji Loha Pvt. Ltd. and other persons, an allegation was made against M/s. Balaji Loha Pvt. Ltd. that they have cleared 265.715 M.T. of M.S. Angles involving duty of Rs.9,30,417/- without discharging duty liability in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is not correct. In support of his submissions he relied upon Tribunals judgment in case of Commissioner of Central Excise Raipur Vs Anand Agrawal reported in 2013 (288) ELT-90(Tri.-Del.). 5. Shri A. Jaju, ld. Counsel for the respondent, pleaded that in this case there is no dispute that the entire disputed amount of duty along with interest and 25% of the duty amount towards penalty have been paid within 30 days of the show cause notice, that in view of this, the first proviso to sub-section 11A(2) will become applicable according to which if the person liable to pay the duty has paid the duty in full together with interest and 25% of duty as penalty in terms of the provisions of sub-section (1A), the proceedings in respect of such person and other persons to whom notice are served under sub-section (1) shall, without prejudice to the provisions of Section 9, 9A and 9AA, be deemed to be conclusive as to the matters stated therein., that the respondent on which the penalty is sought to be imposed under Rule 26 is clearly covered by the words other person, that same view has been taken by the Division Bench of this Tribunal in the case of SONAM CLOCK PVT LTD. 2012 (278) E.L.T. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of or five years, as the case may be. (1A) -When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by reason of fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or the rules made there under with the intent to evade payment of duty, by such person or his agent, to whom a notice is served under the proviso to Sub-Section (1) by the Central Excise Officer, may pay duty in full or in part as may be accepted by him, and the interest payable thereon under Section 11AB and penalty equal to twenty-five per cent of the duty specified in the notice or the duty so accepted by such person within thirty days of the receipt of the notice.] (2) The [Central Excise Officer] shall, after considering the representation, if any, made by the person on whom notice is served under Sub-Section(1), determine the amount of duty of excise due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the period prescribed in Sub-Section (1A), the proceedings in respect of such person and other persons to whom the Notice are served under Sub-Section (1), shall without prejudice to the provisions of Section (9), (9A) and (9AA), be deemed to be a conclusive as to the matter stated therein. There is no dispute that once the payment of the disputed amount of duty along with interest and 25% of duty towards penalty has been made by a manufacturer/ assessee in terms of Sub-Section (1A) within stipulated period, the proceedings against him shall stand concluded and as such there would be no question of the manufacturer/assessee facing penalty under section 11AC equal to the duty demand confirmed. In fact so far as a manufacturer/assessee liable to pay duty is concerned, the benefit of Sub-Section (1A) read with Sub-Section (2) of Section 11A available after issue of Show Cause Notice but before the Adjudication, is equivalent to the benefit available to him under first and second proviso to Section 11AC, which is available after conclusion of Adjudication proceedings and for which the he is required to pay duty demand confirmed along with interest and 25% of duty as penalty withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal (Single Bench) in the case of Anand Agrawal (Supra)has held that since the words such person and other persons in proviso to Sub-Section (2) are qualified by the expression to whom Notice are served in Sub-Section (1), the words other person would not cover, those persons who have been show caused by the same Show Cause Notice for imposition of penalty under Rule 26 and as such the words other persons would include only the persons from whom the duty not paid, short paid and erroneously refunded is to be recovered. With due respect, in my view, this view of the Tribunal in the case of Anand Agrawal (Supra) cannot be treated as correct, as in term of Section 13 of General Clauses Act, 1897, in Central Acts and Regulations, unless there is anything repugnant in the subject or context, the words in singular shall include the plural and vice-versa and, therefore, the words such person in first proviso of Sub-Section(2) would include more than one person also if Show Cause Notice under Sub-Section (1) has been issue for recovery of duty to more than one person. Therefore the words other persons in first proviso to Sub-Section (2) have to be given a meaning different from the wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of a case relating to him, may make an application before the Settlement Commission for settlement of the case. Under Section 32M, every order of settlement passed under section 32F(5) shall be conclusive as to the matters stated therein and no matter covered by said order shall, save as otherwise provided in this chapter, can be reopened in any proceedings under this Act or under any other law for the time being in force. Tribunal in case of Shitala Prasad Sharma Vs. Commissioner of Central Excise, Mumbai-I, reported in 2005 (183) ELT-21 (Tri. Mumbai) relying upon Apex Court s judgment in case of Union of India Vs. Onkar S. Kanwar reported in 2002 (145) ELT- 266 (S.C.) and also the Tribunal s judgment in case of D. P. Kothari reported in 2001(135) ELT-669 has held that when the matter has been settled by the settlement commission against the main party and settlement commission has granted immunity to him from penalty, the co-occured cannot be penalized under Rules, 209A of Central Excise Rules, 1944 as he cannot face a penalty greater than the penalty on the main accused. Same view has been expressed by the Tribunal in case of S.K. Colombowala reported in 2007 (220) ELT-492 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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