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TMI Blog2024 (11) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... s by the Appellant Company and since excise duty is on the manufacture and its sales and marketing are post occurrence activities, in which Appellant was apparently engaged, there can not be a personal liability on the Appellant when learned Commissioner himself has noted that Appellant was part of the team entrusted with the task of determining the pricing of various products and regarding his duty concerning payment/nonpayment of appropriate excise duty, nothing is available in the entire case records to implicate him as a person equally responsible for evading payment of tax. Therefore, it is a fit case where Appellant is in a win win situation for the reasons that the order of penalty imposed on him has already been set aside by CESTAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling benefit of notification No. 49/2008 CX.(NT) Central Excise Act with abatement @ 30% of the Retail sale price, when duty was allegedly payable u/s. 4A of the Central Excise Act. Present Appellant as Director of Sales and Marketing was also served with show cause proposing penalty of Rs. 50 lakhs. Both the noticees suffered adjudication process and demand of Rs. 406,47,261/- raised in the show-cause notice including interest and penalty as proposed were confirmed. Both Appellant Company and the present Appellant challenged the legality of such order passed by the Commissioner before this Tribunal and during the course of hearing of the appeal No. E/86805/2015 filed by the Appellant Company, this Tribunal on 08.11.2019 had set aside Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal on 08.11.2019. 4. Para 9 of the CESTAT order as reproduced by Hon ble Bombay High Court in para 23 of the order passed in writ petition No. ST/3880/2020 clearly indicated that this Tribunal had remanded the matter for a decision on sole aspect of limitation and to determine if the show-cause notice dated 24.12.2014 was barred by limitation. Therefore, when the entire order of the Commissioner was set aside, Appellant s appeal though pending technically has become infructuous and the matter went back to the stage of issue of show-cause notice, the legality of which has not been determined by the concerned Commissioner despite the fact that there is clear direction in the statute namely in Central Excise Act, 1944 itself for determinat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e main noticee has paid tax dues, Department should have issued Form No. SVLDR-4 namely discharge certificate directly from Form No. SVLDR-2 without issuance of Form No. SVLDR-3 showing NIL liability. Objection of the Respondent Commissioner is also placed on record to the fact that Appellant company got the relief from the Hon ble High Court of Bombay but the same benefit cannot be extended to all co-noticee without any formal order. 7. Our observation on the above submission is that under section 124(1)(b) of the Amended Finance Act, 2019 that covers penalty and fine under the scheme in respect of one or more appeals arising out of same show-cause notice and in the case of present Appellant, physically its appeal exists though technically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fit case where Appellant is in a win win situation for the reasons that the order of penalty imposed on him has already been set aside by CESTAT and no further proceedings like re-adjudication or Appeal was initiated against him and thereby the order passed by the CESTAT in 2015 has become final, apart from the fact that even without an application from the Appellant under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 , penalty recoverable from him should be treated as NIL in view of operation of section 124(1)(b) of the Amended Finance Act, 2019 and that the charge labelled against Appellant imposing penalty as a punishment is as such, unsustainable in both law and facts. 9. We, therefore, allow the appeal of Appellant and on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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