2015 (10) TMI 1837

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....ow Cause Notice dt.25.01.2012 against the main noticee, the manufacturer of excisable goods by invoking Section 11A(2B) of the Central Excise Act, 1944 and therefore, the imposition of penalty against the co-noticee, Appellant, cannot be sustained. He drew the attention of the Bench to the relevant provisions of Section 11A(2B) of the said Act. In addition to that, there is no proposal for confiscation of the goods and therefore, the imposition of penalty under Rule 26 of the Central Excise Rules, 2002 is not warranted. 3. On the other hand, the learned Authorised Representative for the Revenue submits that the Tribunal in the case of CCE Raipur Vs Shri Anand Agarwal & Others 2013-TIOL-26-CESTAT-Del, held that merely because the manufact....

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....the said principal, I find that the reasons put forth in the show cause notice explaining their role for imposition of penalty are contained in Para 14 of the show cause notice and they have failed to defend themselves properly, perhaps because the allegations made against them in Para 14 of the show cause notice are factual and by all means it was their duty and responsibility to safeguard the interest of Revenue. They were well aware of the fact that the goods being received by them without payment of duty at their Haridwar unit where they were availing exemption under Notification No.49/2003-CE, as amended by Notification No.76/2003-CE dt.05.11.2003, were liable for confiscation. They acquired possession of such goods and acted by transp....

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....neously been made, requiring him to show cause why he should not pay the amount specified in the notice. ... ... ... (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, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or the rules made thereunder with intent to evade payment of duty, by such person or his agent, to whom a notice is served under the proviso to sub-section (1) by the Central Excise Officer, may pay duty in full or in part as may be accepted by him, and the interest payable thereon under Section 11AB and penalty equal to 25% of the duty specified in the ....

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....the amount of duty 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." 6. On plain reading of the Section 11A(1) of the said Act, it is clear that the Central Excise Officer is empowered to serve a notice on the person chargeable with the duty, which has not been levied or paid or which has been short levied or short paid etc. Sub-section (1A) of Section 11A provides where a person has not paid the duty by the reason o....

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.... under the Show Cause Notice dt.25.01.2012, has been dropped by the Adjudicating authority by invoking Section 11A(2B) of the Act, the imposition of penalty against the Appellant herein cannot be sustained. Section 11A(2B) categorically provides that no notice under sub-section (1) of Section 11A shall be served where the duty and interest paid by the person. Hence, imposition of penalty on the co-noticee cannot be sustained for the reason that the notice issued under Section 11A(1) cannot be served. 9. The learned Authorised Representative relied upon the decisions of the Tribunal. On perusal of the said decisions, it is seen that in both the cases, the Show Cause Notices were issued under Section 11A(1) of the said Act. The main notice....