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TMI Blog2022 (7) TMI 820X X X X Extracts X X X X X X X X Extracts X X X X ..... f conclusion shall be applicable in respect of such person , that is the manufacturer or the person of whom duty is demanded and other persons which refers to co-noticees like directors, transporters, godown keepers, employees etc. Thus, these appellants are also entitled to the benefit of conclusion in terms of the proviso to sub-Section 2 r/w sub-Section (1A) of Section 11A of the Central Excise Act. Appeal allowed - decided in favor of appellant. - Excise Appeal No. 51269 - 51272 of 2019 (SM) - FINAL ORDER NO. 50613-50616/2022 - Dated:- 13-7-2022 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) Mr. Stebin Mathew, Advocate for the Appellant Ms. Tamanna Alam, Authorised Representative for the Respondent ORDER The issue involved in these appeals is whether the appellants who are the co-noticees in the common show cause notice, whether they are entitled to benefit of conclusion of proceedings under Section 11A (1A) r/w proviso to sub Section 2 of Section 11A. 2. The brief facts are that revenue investigated with regard to evasion of duty with respect to the two manufacturers namely Shree Raj Pan Masala Pvt Ltd M/s Shree Raj Exports Pvt Ltd. Pursuant to in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o present their side of the case during the proceedings. Accordingly, we set aside the impugned order and remand the matter for a fresh consideration of the legal issue as mentioned above and to pass the orders in terms of the above provisions. The appeals are disposed of by above terms. 3. Pursuant to remand the learned Commissioner passed the impugned order-in-original dated 07/02/2019 by which, he has been pleased to accept the conclusion of the proceedings in respect of the main party manufacturer Shree Raj Pan Masala Pvt Ltd, observing as follows; Quote 22. I observe that out of above 25 noticees, only 7 had filed appeal before Tribunal. I further observe that Show cause Notice under proviso to section 11A was served only for confiscation of seized goods including packing materials/raw materials used for concealment under provisions of rule 25 of Central Excise rules, 2002 read with Section 119 of the Customs Act as made applicable to the Central Excise matters also vide Notification No. 68/63-CE dated 4.5.1963. Thus, notice under proviso to section 11A was not issued to anyone else. For rest of the noticees, the SCN was issued either for confiscation of tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty under Rule 26, upon the co-noticees was made for their involvement in transporting/removing/depositing/keeping /concealing /selling of those excisable goods which are liable for confiscation, is also not covered under the scope of proviso to Section 11A (2) of the Central Excise Act. Hence, conclusion of proceedings, in respect of these appellants is not acceptable under the scope of Section 11A (1A) r/w proviso under sub-Section 2 to Section 11A. The learned Commissioner also placed reliance on the ruling of a co-ordinate Bench of this Tribunal in CCE vs. Anand Agrawal 2013 288 ELT 90. 5. Being aggrieved, the appellants are before this Tribunal. Learned Counsel for the appellants inter alia urges that the learned Commissioner have erred in not accepting conclusion with respect to the present appellants, and in restricting the conclusion of proceedings with respect to the main appellants manufacturer M/s Shree Raj Pan Masala Pvt Ltd. The learned Counsel points out that the provisions of Section 11A particularly, proviso to sub-Section 2 provides -that if such person (from whom the duty is demanded) has paid the duty in full together with interest and penalty under sub-Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... context where it occurs. The proviso to Section 28(1A) uses the expression proceeding which in our view is required to be understood in broader manner keeping in view the legislative intention. Legislative intent is clear from the Circular No. 831/8/2006-CX, dated 26-7-2006 issued by the Board. Relevant paragraph is reproduced below : 2. Section 11A of the Central Excise Act, 1944 has been amended to introduce an optional scheme for enabling voluntary payment of duty by assessees, in full or in part, in cases involving fraud, misstatement etc. along with interest and 25% of the duty amount as penalty within 30 days of the receipt of the show cause notice thereby dispensing with the rigours of adjudication procedure. This is an additional facility given to the Trade to settle the dispute at an early stage to reduce litigation and also aid in collection of tax dues more expeditiously. The scheme is optional and not compulsory. The assessee has the further option of using the proposed facility in full or in part. In case of part payment, the remaining amount will be subject to regular proceedings as per the law. As is clear from the above reproduced portion, the facilities sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve opportunity to manufacturer to settle the duty dispute immediately on receipt of show cause notice thereby avoiding litigation. 13. Though we note that the above decisions were mainly in the context of the Central Excise provisions but Section 11A of the said Act is pari materia to Section 28(1A) of the Customs Act. As such, the ratio of the above decisions would squarely apply to the facts of the present cases also. 14. We further note that proviso to Section 28(1A) uses the expression as to the matter stated therein . This will lead to simpliciter reference to all the matters stated in the show cause notice, including the proposal to confiscate the seized goods. The same would not survive once there is compliance with the provision of Section 28(1A). The said section makes exception only to the applicability of the Sections 135, 135A and 140 in which case the proceedings under the said section can only be held as not concluded. To accept Revenue s stand would amount curtailing the sweep of said proviso and by adopting artificial interpretation to defeat the statutory intention. It is well settled law that the legislative intent, extending certain beneficial provision to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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