2 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO.185 OF 2006 Commissioner of Central Excise & Customs ...Appellant. v. M/s. Standard Greaves ...Respondents. Mrs.S.V.Bharucha, adv. For the Appellant. Mr.Anupam Dighe i/by India Law Alliance, adv. for the Respondent Nos.3 and 4.. CORAM : F.I. REBELLO & J.H. BHATIA, JJ. DATED : 18TH JUNE, 2009 P.C. 1 After considering the order, we find that the question as framed whilst admitting the appeal really did not arise. The Tribunal had answered the issue placing reliance on the judgment in Machino Montell 2004 (168) ELT 466. 2 The Supreme Court has now answered the issue in Union of India v. Rajasthan Spinning & Weaving Mills 2009 (238) E.L.T. 3 (S.C.). From the ratio of that judgment what it be clear is that mere payment before issuing show-cause notice cannot result in non- imposition of penalty. Once the provisions of penalty are attracted, it will have to be found whether provisions of Section 11AC are satisfied 2 before the penalty can be imposed. In the instant case, that has not been considered. 3 In our view considering the Rajasthan Spinning & Weaving Mills (Supra), we set aside the order and remand the matter back to the Tribunal for re-considering the issue in terms of the law laid down by the Supreme Court in Rajasthan Spinning & Weaving Mills (Supra). (J.H. BHATIA,J.) (F.I. REBELLO,J.)