TaxTMI 
TaxTMI 
2017 (10) TMI 799
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.... 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 Excise duty, interest thereof and also 25% of the penalty amount involved as per the provisions of Sec. 11AC of the Central Excise Act, 1944, the Adjudicating Authority has appropriated the said amount and closed the chapter in respect of the SPMPL, while continuing adjudication proceedings against this appellant, the authority has imposed equivalent amount of penalty under Rule 26 on the ground that he wa....
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....ot paid or short-levied or short-paid or erroneously refunded. - (1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, whether or not such non-levy or non-payment, short-levy or short payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any other provisions of this Act or the rules made thereunder, 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, ....
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....ys of the receipt of the notice. (2) Central Excise Officer shall, after considering the representation, if any, made by the person on whom notice is served under sub-section (1), determine the amount of duty of excise due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. Provided that if such person has paid the duty in full together with, interest and penalty under sub-section (1A), the proceedings in respect of such person and other persons to whom notice is served under sub-section (1) shall, without prejudice to the provisions of sections 9, 9A and 9AA, be deemed to be conclusive as to the matters stated therein: Provided....
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....nd 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 wa....
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....se out of same facts but in the matter of two partners. 2. The appeals have been preferred by the Revenue under Section 35G of the Central Excise Act, 1944 (for short the Act ) against order dated 5-1-2011 [2011 (266) E.L.T. 137 (Tri.-Del.)] passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi whereby claim of the Revenue for imposition of penalty under Rule 26 of the Central Excise Rules, 2002 (for short the Rules ) on the partners of the firm was declined. 3. The Revenue served a show cause notice dated 1-8-2008 on the firm M/s. Kripalu Steel Industries that the said firm is indulging in clandestine manufacture and clearance of M.S. Bars/Patra etc. and using clandestinely procured M.S. Ingots from va....
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....how cause notice under Section 11A(1) of the Act had been issued and proceedings stand concluded against firm, therefore, penalty proceedings under Rule 26 of the Rules cannot be continued against partners. The said order was affirmed in appeal by the Tribunal as well vide order dated 5-1-2011. 5. Learned counsel for the appellant vehemently argued that the conclusion of proceedings under Section 11A(2) of the Act does not absolve the partners from the penalty proceedings initiated separately under Rule 26 of the Rules. 6. We do not find any merit in the said argument. Once the proceedings against the firm stand concluded, penalty proceedings against partners of the firm cannot continue as Rule 26 of the Rules is not an in....