2012 (6) TMI 755 - AT - Central Excise

Tribunal bars separate penalty on Director after assessee settlement under Central Excise Act

COMMISSIONER OF CENTRAL EXCISE, RAIPUR Versus NIRMAL KUMAR AGARWAL

The Tribunal ruled in favor of the Respondent, holding that after settling proceedings against the assessee under Section 11A(1A) of the Central Excise ... Penalty u/s 11A(1A) - Whether after conclusion of proceedings against an assessee under Section 11A(1A), a separate proceeding imposing penalty on the Director of the company can survive - clandestine manufacture and clearance of excisable goods - Held that:- The provisions in the first proviso to Section 11A(2) is very clear that if the proceeding against an assessee is concluded under Section 11A(1), further proceedings against any other person to whom notice was served under sub-section (1) of Section 11A also are to be treated as closed - Decided against Revenue. Issues:1. Imposition of penalty on the Director of a company after settlement of proceedings against the assessee under Section 11A(1A) of the Central Excise Act.Analysis:The case involved a Show Cause Notice issued against M/s. Jay Ambey for alleged clandestine removal, which was settled by the assessee by paying duty, interest, and 25% of the penalty under Section 11A(1A). The Revenue filed an appeal seeking to impose a penalty on the Director of the company under Rule 26 of the Central Excise Rules, 2002. The main issue was whether separate proceedings imposing a penalty on the Director could continue after the conclusion of proceedings against the assessee under Section 11A(1A).The Revenue argued that since the Director was involved in the clandestine activities, a penalty should be imposed on him under Rule 26. They relied on precedents like the case of Gokul Petro Chemicals Pvt. Ltd. and Thermotech to support their position. On the other hand, the Respondent contended that under the first proviso of Section 11A(2), when the assessee settles the matter by paying the duty, interest, and penalty, proceedings against other persons should be considered concluded as well.After considering the arguments from both sides, the Tribunal noted that the first proviso to Section 11A(2) clearly states that if proceedings against an assessee are concluded under Section 11A(1), further proceedings against other persons served notices under Section 11A(1) should also be deemed closed. The Tribunal highlighted that the cases referred to by the Revenue did not involve settlements under Section 11A(1A. Therefore, the Tribunal found no merit in the Revenue's appeal and rejected it.In conclusion, the Tribunal ruled in favor of the Respondent, stating that after the settlement of proceedings against the assessee under Section 11A(1A), no separate penalty proceedings against the Director could be pursued, as per the provisions of the Central Excise Act.