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TMI Blog2015 (10) TMI 1837X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 mann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipur Vs Shri Anand Agarwal Others 2013-TIOL-26-CESTAT-Del, held that merely because the manufacturer has discharged the duty liability alongwith interest and penalty equal to 25% duty in terms of Section 11A(1A) of the Central Excise Act, 1944 the proceedings against the co-noticee cannot be held to be conclusive in nature. He also relied upon the decision of the Tribunal in the case of Shri Ghanshyamdas C Goyal Vs CCE Aurangabad 2015-TIOL-756-CESTAT-MUM. He further submits that it is not a case of Section 11A (2B) of the Act, as the Show Cause Notice was issued for the demand of duty more than ₹ 4 Crores. 4. After hearing both the sides and on perusal of the records, I find from the impugned order that the Adjudicating authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were liable for confiscation. They acquired possession of such goods and acted by transporting depositing, keeping and selling such goods, thereby they have rendered themselves for penalty under Rule 26 of the Central Excise Rules, 2002. 34. In view of the above discussion and findings, I pass the following order:- ORDER The proceedings initiated against M/s Banco Aluminum Limited, Padra, Vadodara vide Show Cause Notice F.No.76(4)I/OA/Commr-1/2012, dt.25.01.2012 are hereby dropped. I impose penalty of ₹ 5,00,000.00 (Rupees Five Lakhs only) under Rule 26 of the Central Excise Rules, 2002 on M/s VIP Industries, Haridwar, Uttaranchal 429 403. 5. For the purpose of the proper appreciation of the case, the relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 11AB and penalty equal to 25% of the duty specified in the notice or the duty so accepted by such person within 30 days of the receipt of notice. (2) The Central Excise Officer shall, after considering the representation, if any, made by the person or whom notice is served under sub-section (1), determine the amount of duty or excise due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. ... ... ... (2A) Where any notice has been served on a person under sub-section (1), the Central Excise Officer, - (a) in case any duty of excise has not been levied or paid or has been shot levied or short paid or erroneously refunded, by reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not paid the duty by the reason of fraud, collusion or any wilful mis-statement or suppression of facts etc to whom the notice is served under sub-section (1) of the said Section, the person may pay duty in full or in part as may be accepted by him along with interest under Section 11AB and penalty equal to 25% of the duty of the notice to be accepted by the Department. Sub-section (2A) of the Section 11A of the said Act provides that the Central Excise Officers shall determine the amount of duty. Sub-section (2B) of the Section 11A of the Act which is the subject matter of the present appeal, provides a different situation. In terms of Section 11A(2B) of the Act, if the person on his own ascertainment or on the basis of duty ascertain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1A(1) of the said Act. The main noticee paid the duty along with interest and penalty 25% of the duty. In this context, the Tribunal observed that the imposition of penalty against the co-noticee would be survived. 10. Another aspect of this matter, the 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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