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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 ..... e 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. Demand set aside - appeal allowed - decided in favor of appellant. - E/10127/2015 - A/12975/2017 - Dated:- 13-10-2017 - Shri M V Ravindran, Member (Judicial) For the Applicant : Shri Anish Goyal, Chartered Accountant For the Respondent : Shri A Mishra, Authorised Representative ORDER Per : Shri M V Ravindran This appeal is directed against OIA-CCESA-VAD-APP-II-/SSP-015/2014-15 dt 28/11/2014. 2. The issue falls for consideration in the case in hand is whether the appellant herein is liable to be penalized under provisions of 26 of the Central Excise Rules 2002, on the ground that he has been the Director 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 E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reunder, 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 specified in the notice: Provided that where 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 wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, as if, ,for the words one year the words five years were substituted: Explanation . - Where the service of the notice is stayed by an order of a Court, the period of such stay shall be excluded in computing the aforesaid period of one year 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, co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Where any duty or excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person, chargeable with the duty, may pay the amount of duty 71 [on the basis of his own ascertainment of such duty or on the basis of duty ascertained by a Central Excise Officer] before service of notice on him under sub-section (1) in respect of the duty, and inform the Central Excise Officer of such payment in writing, who, on receipt of such information shall not serve any notice under sub-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, collusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Later M/s. Kripalu Steel Industries was called upon as to why the total Central Excise duty amounting to ₹ 1762106/- (BED ₹ 1710782 + Ed Cess ₹ 34216/- + Cess ₹ 17108/-) and the deficiency in the payment of Central Excise duty amounting to 218336/- (211976 + 4240 + 2120) on 57.155 M.T. M.S. Ingots and ₹ 36520/- (35456 + 709 + 355) on 9.560 M.T. M.S. Bar/Patras be not recovered from them under Section 11(A)(1) of the Act. It was also stated that why the penalty should not be imposed on the firm under Section 11AC of the Act. Apart therefrom such notice to the firm, the partners were issued show cause notices as to why penalty should not be imposed under Rule 26 of the Rules. 4. During the adjudication proceedings, the firm deposited the amount claimed and that the Additional Commissioner returned a finding that the proceedings against the firm stands concluded under proviso to sub-section (2) of Section 11A of the Central Excise Act, 1944 but imposed a penalty of ₹ 2 lacs each individually and separately on the partners of the firm. The said order was set aside by the Commissioner (Appeals) on 20-3-2009. It was held that the Rule 26 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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