Cce, Raipur vs Shri Prakash Kedia, Director

IN THE CUSPTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI

Date of Hearing/ Decision:11.06.2015

Excise Appeal No.E/175, 1748, 1874, and 1875 of 2010-EX(DB)

[Arising out of Order-in-Appeal No.57/RPR-I/2009 dated 3.11.2009 in Appeal No.E/17, Order-in-Appeal No.85/RPR-I/2009 dated 17.12.2009 in Appeal No.E/1748/2010 and Order-in-Appeal No.87/RPR-I/2009 dated 17.12.2009 in Appeal No.E/1874/2010 and Order-in-Appeal No.86/RPR-I/2009 dated 17.12.2009 in Appeal No.E/1875/2010 passed by the Commissioner (Appeals-I), Customs & Central Excise, Tikarapara, Raipur]

CCE, Raipur Appellants

Vs.

Shri Prakash Kedia, Director Respondent

Appearance:

Rep. by Shri R.K. Gupta, DR for the appellant.

Rep. by Shri Jatin Mahajan, Advocate DR for the respondent.

For approval and signature:

Honble Shri Rakesh Kumar, Member (Technical)

Honble Smt.Sulekha Beevi, Member (Judicial)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

Coram: Honble Shri Rakesh Kumar, Member (Technical)

Honble Smt.Sulekha Beevi, Member (Judicial).

Final Order No.51973-51976/2015 dated:11.06.2015

Per Rakesh Kumar:

In these cases, the respondent had been issued show cause notice for imposition of penalty under Rule 26 along with proposal for recovery of duty from the main noticee along with interest and imposition of penalty on him. The show cause notice had been issued by alleging fraud, wilful mis-statement, suppression of facts, etc. with intent to evade payment of duty. In all these cases, the main noticee i.e. the assessee from whom the duty has been demanded, has, in accordance with the provisions of sub-Section (1A) of Section 11 A, deposited the disputed amount of duty along with interest and an amount of 25% of the duty demand as penalty within 30 days of issuance of show cause notice. The only point of dispute is as to whether in accordance with the proviso to Section 11A(2), the proceedings against the respondents who were co-noticee would be deemed to have been concluded. In Appeal No.E/1748 and E/1874-1875/2010, the Addl. Commissioner had imposed penalty on Shri Prakash Kedia under Rule 26 but in Appeal No. E/175/2010, the Addl. Commissioner had dropped the penalty imposed under Rule 26 by invoking first proviso to Section 11 A(2) read with sub-section (1A) of Section 11 A. In the first three cases, the respondent filed appeals to the Commissioner (Appeals) against the imposition of penalty on them under Rule 26 and the same were allowed by the Commissioner (Appeals) by three separate orders. Against these orders of the Commissioner (Appeals), the Appeals No.E/1748, E/1874 and E/1875/2010 have been filed by the Revenue.

2. In the fourth case, where the Addl. Commissioner had dropped the penal proceedings against Shri Prakash Kedia under Rule 26 , the Revenue filed appeal to the Commissioner (Appeals) against the Addl. Commissioners order and the same was dismissed by the Commissioner (Appeals). Against this order of the Commissioner (Appeals), the Revenue has filed appeal no.E/175/2010.

3. Heard both the sides.

4. Shri R.K. Gupta, ld. Departmental Representative, assailed the impugned order of the Commissioner (Appeals) by reiterating the grounds of appeal and pleaded that just because the main noticee had opted to pay the entire duty demanded from him along with interest and 25% of the duty demand as penalty in accordance with provisions of sub-section (1A) to Section 11A and for this reason, in terms of First Proviso to Section 11A (2), the proceedings against the main noticee stand concluded, the proceedings of imposition of penalty under Rule 26 on the co-noticee would not be concluded and as such, the proviso to section 11A(2) does not apply to co-noticee. He, therefore, pleaded that the impugned orders of the Commissioner (Appeals) are not correct.

5. Shri Jatin Mahajan, Advocate, ld. Counsel for the appellant defended the impugned order of the Commissioner (Appeals) by citing the judgments of the Honble Punjab & Haryana High Court in the case of Commissioner of Central Excise, Chandigarh-I Vs. Vikas Garg reported in 2014 (306) ELT 94 (P&H), judgement of the Tribunal in the case of CCE, Raipur Vs. Jay Prakash Agarwal reported in 2013 (297) ELT 554 (Tribunal-Delhi), CCE, Raipur Vs. Abir Steel Rolling Mills reported in 2013 (296) ELT 90 (Tribunal-Delhi), CCE, Vapi Vs. Technovinyl Polymers Ltd. reported in 2013 (298) ELT 50 (Tribunal-Ahmd.) and Tikam P. Bhojwani Vs. CC, Chandigarh reported in 2011 (272) ELT 88 (Tribunal-Ahmd.), wherein it has been held that when the proceedings against the main noticee regarding recovery of duty, interest and imposition of penalty stands concluded in terms of the proviso to Section 11 A (2) read with subsection (1A) of Section 11A, the proceedings for imposition of penalty against co-noticee would also stand concluded as the words other person in Ist proviso to Section 11 A(2) refers to co-noticee.

6. We have considered the submissions from both the sides and perused the records.

7. We find that the issue involved in this case stands decided in favour of the respondent by the judgement of the Honble Punjab & Haryana High Court in the case of Vikas Garg (supra) and also by a series of judgements of the Tribunal as mentioned above. In view of this, we do not find any merit in the Revenues appeals. The same are dismissed.

(Rakesh Kumar)

Member (Technical)

(Sulekha Beevi C.S. )

Member (Judicial)

Ckp.

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