1 IN THE HIGH COURT OF BOMBAY AT GOA EXCISE APPEAL NO. 1 OF 2007 The Commissioner of Central Excise, ICE House, Patto, Panaji, Goa, 403001. … Appellant V e r s u s M/s M. R. F. Ltd., Usgao Goa. … Respondent Ms. S. Linhares, Central Government Standing Counsel for the appellant. Mr. J. E. Coelho Pereira, Senior Advocate with Mr. A. Phadte, Advocate for the respondent. CORAM : S. A. BOBDE & F. M. REIS, JJ. DATE : 12 th JULY, 2011 . ORAL JUDGMENT ( Per S. A. BOBDE, J) By this appeal, the Commissioner of Central Excise, Panaji Goa, has assailed the order of the CESTAT in Appeal No. E/2044/01 dated 9/8/2006 by which the Tribunal has allowed the appeal of the respondent - MRF and held that MRF is not responsible for any penalty and interest since they 2 have deposited the duty before the issue of show cause notice. 2. In taking the above view, the Tribunal has followed its earlier decision in Rashtriya Ispat Nigam Ltd. V/s CCE, Vishakhapatnam, 2003(161) ELT 285 against which Special Leave Petition was dismissed by the Supreme Court and another decision of the Tribunal in CCE, Delhi III V/s Machino Montell (I) Ltd 2004 (168) ELT 466. 3. Ms. S. Linhares, learned Counsel for the Revenue – appellant has relied on the decision of the Himachal Pradesh High Court in C.C.E., Chandigarh V/s Himachal Exicom Communications Ltd., 2011(264) E.L.T. 21(H.P.) where that Court has relied on the decision of the Supreme Court in Sony India Ltd.,V/s Commissioner of Central Excise, Delhi 2004 (167) E.L.T. 385 in which it was held that mere deposit of the amount prior to the issuance of the show cause notice under Section 11A of the Act will not necessarily negate the situation mentioned in the said Section. We are in respectful agreement with that decision and we are of the view that the Tribunal has committed a gross error in holding that the 3 respondent were not liable for any penalty and interest merely on the ground that they had deposited part of the duty on 5.6.2000 and 20.7.2000 before the show cause notice was issued on 27.2.2001. We, accordingly, set aside the order of the Tribunal and remand the matter back for fresh decision in accordance with law. The contention of the learned Senior Counsel Shri J. E. Coelho Pereira appearing for the respondent that the respondent are not liable for any penalty and interest since the proceedings for recovery have been initiated beyond period of limitation prescribed by Section 11A of the Act and any other contentions as regards liability in this regard are left open. 3. Rule made absolute in above terms. No order as to costs. S. A. BOBDE,J F. M. REIS, J at*