: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY Ordinary Original Civil Jurisdiction Ordinary Original Civil Jurisdiction Ordinary Original Civil Jurisdiction CENTRAL EXCISE APPEAL NO.15 OF 2009 CENTRAL EXCISE APPEAL NO.15 OF 2009 CENTRAL EXCISE APPEAL NO.15 OF 2009 The Commissioner of Central Excise Mumbai ...Appellant. V/s. M/s.Auto Power ...Respondents. Mr.R.V.Desai Sr.Counsel with Mr.R.B.Pardeshi , advs. for the Appellant. None for the Respondents. CORAM: F.I.Rebello & CORAM: F.I.Rebello & CORAM: F.I.Rebello & J.H.Bhatia,JJ J.H.Bhatia,JJ J.H.Bhatia,JJ. DATE : 6th May, 2009. DATE : 6th May, 2009. DATE : 6th May, 2009. P.C.: P.C.: P.C.: 1. Though the respondent has been served, it has chosen not to appear. Admit on the following substantial question of law: "Whether in the facts and circumstances of the case and in law, the Hon’ble CESTAT, Mumbai was inter-alia, justified in upholding the reduction in monetary penalty leviable under Section 11AC to an amount less than the duty determined under the provisions of Section 11A(2) of the Act, despite confirming the duty demand of Rs.1,45,149/- recoverable from the assessee herein ?" 2. The Assessing Officer considering the duty payable had imposed a penalty of Rs.1,45,149/-. In an appeal preferred by the assessee before the Commissioner : 2 : (Appeals), the Commissioner (Appeals) interfered with the penalty and reduced the same to Rs.15,000/-. The appeal preferred before the CESTAT was dismissed placing reliance upon the judgment in State of Maharashtra v. Bharat Heavy State of Maharashtra v. Bharat Heavy State of Maharashtra v. Bharat Heavy Electricals Ltd. 1998 (99) ELT 33 (SC). Electricals Ltd. 1998 (99) ELT 33 (SC). Electricals Ltd. 1998 (99) ELT 33 (SC). It is against that order the Revenue has come in appeal before this Court. 3. Our attention is invited to the judgment in Union Union Union of India v. Dharamendra Textile Processors 2008(231) of India v. Dharamendra Textile Processors 2008(231) of India v. Dharamendra Textile Processors 2008(231) E.L.T. 3 (S.C.) E.L.T. 3 (S.C.) E.L.T. 3 (S.C.). Section 11AC of the Central Excise Act, 1944 was directly in question as also the judgment in the case of BHEL (Supra) BHEL (Supra) BHEL (Supra). The Supreme Court after considering the provisions of the Act and case-laws, was pleased to observe as under; "12........Most of cases relied upon by learned counsel for the assessee had their foundation on Bharat Heavy Electrical’s case (supra). As noted above, the same is based on concession and in any event did not indicate the correct position in law." The Supreme Court also noted that in Section 11AC of the Act, there is no scope for any discretion. In other words, once the authority comes to conclusion that the penalty is leviable then the penalty has to be in terms of the provisions and there is no discretion to reduce the amount : 3 : of penalty. 4. Considering the above, the order of CESTAT is set aside and the order of Assessing Officer is restored. In the light of that, question is answered in the negative in favour of the Revenue and against the assessee. 4. The Appeal stands dismissed. (F.I.Rebello, J.) (F.I.Rebello, J.) (F.I.Rebello, J.) (J.H.Bhatia, J.) (J.H.Bhatia, J.) (J.H.Bhatia, J.)