*1* kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO.33/2004 Union of India and another. ..Appellants -Versus- M/s Shree Venkateshwara Industries. ..Respondents. ........... Mr.P.S.Jetly and Mr.J.B.Mishra, Advocates for the Appellants. Mr.M.H.Patil, Advocate for the Respondents. .......... CORAM : V.C.DAGA & K.K.TATED, JJ. Date : 11th January, 2010. P.C. 1 Heard the learned counsel for Revenue and the learned counsel appearing for the Respondents. 2 This appeal was admitted by an order dated 29.06.2005 on the following questions of law which are set out as substantial questions of law:- “1. Whether the Hon’ble CESTAT is correct in law to quash the penalty under Rule 209A of Central Excise Rules, 1944 when no penalty has been imposed on the partnership firm? 2. Whether the Hon’ble CESTAT is correct in law to quash the penalty against the partner when show cause was issued and violation of Rules 9(2) and/or Rule 223 and/or Rule 52A and/or Rule 226 of Central Excise Rules, 1944 was established? 3. Whether the Hon’ble CESTAT is *2* correct in law to quash the penalty imposed under Section 11AC of Central Excise Act, 1944?” 3 So far as the first two issues are concerned, it relates to imposition of penalty on the partnership firm. The Tribunal, while deciding this question, has relied upon its own judgment in case of Darshan C. Sanghvi Vs. Commissioner of Central Excise, Ahmedabad reported in 2002(142) ELT 676 (Tri-Mum). The same view was once again reiterated by the Tribunal subsequently in its another judgment in case of Alfa Ceramics Industries Vs. Commissioner of Central Excise, Indore 2002(145) ELT 454 (Tri.- Delhi). The said view of the Tribunal found favour of the Apex Court since SLP preferred against the order of the Tribunal was dismissed as reported in 2003 (156) ELT A-325 (SC). 4 At this juncture, it is also relevant to mention that the Division Bench of this Court has also taken the same view in case of The Commissioner of Customs Vs. Jupiter Exports 2007(213) ELT 641 (Bom.) to which one of us (V.C.Daga, J) is party. 5 In the above view of the matter, the first two questions are required to be answered against the Revenue and in favour of the assessee. Order accordingly. 6 So far as the third question is concerned, it revolves around facts. The Tribunal has recorded a finding on the *3* touchstone of Section 11AC of the Central Excise Act, 1944 and Rule 209A framed thereunder. Admittedly, the transaction involved in the present appeal is prior to the period of insertion of Section 11AC in the Central Excise Act, 1944. The Apex Court, in case of Commissioner of Central Excise, Coimbatore Vs. ELGI Equipments Ltd. 2001 (128) ELT 52 (SC), has ruled that Section 11AC of the Central Excise Act, 1944 has prospective effect and thus, it has no retrospective operation. Under these circumstances, the third question is also required to be answered against the Revenue and in favour of the assessee. 6 In the result, appeal is dismissed with no order as to costs. (K.K.TATED, J.) (V.C.DAGA, J.)