2018 (5) TMI 200

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....that though his name is appearing in the cause list, he is no longer representing the respondent no.2 M/s Kumar Abhishek Engineering Company. 3. On the matter being called, there is none for the respondents. It is seen that in the last three dates of hearing also, no appearance was caused on behalf of the respondents despite notice. In this background, as the matter pertains to 2010, the same is taken up for disposal with the help of Ld. A.R. 4. Brief facts of the case are that an investigation was carried out by Central Excise Intelligence in the case of M/s Ind-Swift Limited, Panchkula, involving fraudulent availment of inadmissible Cenvat credit on the basis of invoices received from a large number of firms located in Ghaziabad and....

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....assessee in the instant case, penalties under Rule 25 of Central Excise Rules to the present respondents, who have preferred appeal, is also not warranted. The Commissioner (Appeals) relied on the order passed by the CESTAT, Mumbai in the case of Shri S.K. Colombowala & others vs. Commissioner of Customs (Import) Mumbai - 2007 (220) ELT 492 (Tri.-Mumbai). Aggrieved from the same, the Revenue has filed these appeals. 5. Ld. A.R. relies upon the recent judgment of this Tribunal in the case of Mamta Garg vs. Commissioner of C.Ex., Noida - 2018 (359) ELT 77 (Tri.-Del.) to argue that immunity given by the Settlement Commission to main party cannot be extended automatically to other co-noticees, who have not approched the Settlement Commission....

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....lty on the co-noticees, who do not approach the Settlement Commission and undergo the adjudication process has been decided by the judgment of this Tribunal in the difference of opinion case of Mamta Garg (supra), wherein the Tribunal has held as below: "36. The Hon'ble Bombay High Court in Yogesh Korani -2003 (159) ELT 3 (Bombay), as affirmed by the Hon'ble Supreme Court reported in 2004 (163) ELT A50 (S.C.), held that when the penalty was levied on the petitioner based on the independent and distinct causes of action then they cannot be considered on par with the main noticee. The reliance placed by the Ld. Counsel on S.K. Colombowala (supra) and various other decisions, which followed the same, can be distinguished by examining the al....

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....iew of the above and by following the judgment in the case of Mamta Garg (supra), I hold that the appeals filed by present respondents can not be allowed on the ground that main accused got immunity from the Settlement Commission. The Commissioner (Appeals) is therefore required to examine the merits of the present case with the merits of the case against the main accused. Besides, I also find that the findings on merit given by Ld. Commissioner (Appeals) are very terse and restricted to simply endorsing the order of the adjudicating authority without giving any kind of analysis on the basis of which he came to the conclusion that these cases are not of the type where penalties under Rule 25 are not imposable. Commissioner (Appeals) should ....