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TMI Blog2017 (10) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... of one M/s Sachin Paper mills Pvt Ltd (hereinafter referred to as SPMPL), it transpires from the records that the investigating authorities concluded SPML was clandestinely removing the goods, with intention to evade payment of Central Excise duty; the said company discharged the entire Central Excise duty, interest thereof and also 25% of the penalty amount involved as per the provisions of Sec. 11AC of the Central Excise Act, 1944, the Adjudicating Authority has appropriated the said amount and closed the chapter in respect of the SPMPL, while continuing adjudication proceedings against this appellant, the authority has imposed equivalent amount of penalty under Rule 26 on the ground that he was engaged in day to day affairs of the compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . - (1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, whether or not such non-levy or non-payment, short-levy or short payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any other provisions of this Act or the rules made thereunder, a Central Excise Officer may, within one year from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 amount so determined. Provided that if such person has paid the duty in full together with, interest and penalty under sub-section (1A), the proceedings in respect of such person and other persons to whom notice is served under sub-section (1) shall, without prejudice to the provisions of sections 9, 9A and 9AA, be deemed to be conclusive as to the matters stated therein: Provided further that, if such person has paid duty in part, interest and penalty under sub-section (1A), the Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-section (1) in respect of the duty so paid: Provided that the Central Excise Officer may determine the amount of short payment of duty, if any, which in his opinion has not been paid by such person and then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of one year referred to in sub- section (1) shall be counted from the date of receipt of such information of payment. Explanation 1. - Nothing contained in this sub-section shall apply in a case where the duty was not levied or was not paid or was short-levied or was short-paid or was erroneously refunded by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) against order dated 5-1-2011 [2011 (266) E.L.T. 137 (Tri.-Del.)] passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi whereby claim of the Revenue for imposition of penalty under Rule 26 of the Central Excise Rules, 2002 (for short the Rules ) on the partners of the firm was declined. 3. The Revenue served a show cause notice dated 1-8-2008 on the firm M/s. Kripalu Steel Industries that the said firm is indulging in clandestine manufacture and clearance of M.S. Bars/Patra etc. and using clandestinely procured M.S. Ingots from various furnace units. This led to search of the premises on 27-2-2008. At the time of search, shortages were found. Noticee M/s. Kripalu Steel Industries agreed with the shortages and paid the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artners. The said order was affirmed in appeal by the Tribunal as well vide order dated 5-1-2011. 5. Learned counsel for the appellant vehemently argued that the conclusion of proceedings under Section 11A(2) of the Act does not absolve the partners from the penalty proceedings initiated separately under Rule 26 of the Rules. 6. We do not find any merit in the said argument. Once the proceedings against the firm stand concluded, penalty proceedings against partners of the firm cannot continue as Rule 26 of the Rules is not an independent provision but has to be read with Section 11A of the Act. The firm has satisfied the due of the Revenue, therefore, the imposition of penalty under Rule 26 of the Rules are not justified. 7. In view o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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