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TMI Blog2015 (9) TMI 1379X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant : Shri Ashok Kumar Singh, Adv. For the Respondent : Shri V K Agarwal, Addl. Comm. (AR) ORDER Per: P K Jain: 1. Three appeals have been filed by the appellant against imposition of penalty of ₹ 50,000/- each in three appeals under Rule 26 of the Central Excise Rules 2002. Brief facts of the case are that various places of the appellant including the office in Mumbai and factory in Nashik, etc. were searched, besides, certain places of brokers. Certain incriminating documents were recovered from the office of the present appellant. These documents indicated that the appellant has purchased clandestinely cleared MS Ingots and MS bars from various manufacturers. Based upon these documents, statement of Shri Pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Additional Commissioner (AR) reiterated the points made in the order and submitted that there is no dispute that the present appellant has purchased clandestinely cleared goods without payment of duty and in view of the said fact, the appellants are liable to penalty, the penalty imposed is not on the higher side. 4. We have considered the rival submissions. 4.1 As far as the appeal No. E/1387/10 and E/1388/10 are concerned, we find that the matter is covered by the Tribunal's judgment in the case of Jay Prakash Agarwal (supra). The period involved in the present case is prior to the amendment made in Section 11A(1A). In the said judgment, the Tribunal has observed as under: 8. The first proviso to sub-section (2) use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 issued for recovery of duty to more than one person. Therefore the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce under Section 11A(1) issued to the person chargeable with duty or by separate notices issued in this regard. This interpretation would make sense, as when the proceedings against the manufacturer/assessee stand concluded on payment of disputed amount of duty plus interest plus 25% of the duty as penalty, there would be no sense in continuing the proceedings for imposition of penalty under Rule 26 against other persons like traders who had purchased the goods, transporters who had transported the goods cleared by manufacturer/assessee, the Directors/employees of the manufacturer/assessee company. 8.2 For the purpose of settlement of a case, Section 31(a) of Central Excise Act, 1944, defines assessee as any person who is liable for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 92 (Tri.) with regard to settlement provisions in Customs Act, 1962. The view expressed in para 6.1 above would be in accordance with the ratio of the above-mentioned judgments of the Tribunal. 8.3 The intention of sub-section (1A) read with sub-section (2) of Section 11A, as is evident from Board's Circular No. 831/08/2006-EX., dated 26-7-2006, is to give opportunity to manufacturer/assessee to settle his tax dispute immediately after the receipt of issue of show cause and thereby avoiding the litigation. The interpretation of these provisions sought by the Revenue would be contrary to this objective. 4.2 The above judgment of the Tribunal is squarely applicable to the facts in Appeal No. E/1387/10 E/1388/10 and the two ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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