IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO.84 OF 2004 The Commissioner of Central Excise, Mumbai -V, 5th Floor, Utpad Shulk Bhavan, Plot No.C-24, Sector – E, Bandra Kurla Complex, Bandra, Mumbai – 400 051. .... Appellant V/s. M/s.Cewat India Processors, Near Haren Textiles Off W.E. Highway, Dahisar (W), Mumbai – 400 068. .....Respondent Mr.R.V.Desai with Ms.Neeta Masurkar and Rutuja Ambekar, for the appellant. Mr.M.H.Patil with Ms.Aparna Hirondagi, for the respondent. CORAM : SHRI P.B.MAJMUDAR & SHRI J.P.DEVADHAR, JJ. DATED : 2nd DECEMBER, 2008. ORAL JUDGMENT ( PER P.B.MAJMUDAR, J. ) 1. This appeal is directed against the judgment and order passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Mumbai, in Appeal No.E/2221/2001 dated 16-12-2003. By the impugned order, the Tribunal found that the imposition of penalty is totally unjustified as there is a delay of one one day in making the required payment. The Tribunal after considering various judgments of Gujarat High Court, confirmed the order in appeal by dismissing the appeal filed by the revenue. 2 Against the aforesaid order, the Revenue has come in this appeal. 2. The appeal was admitted on the following substantial question of law : - (a) “Whether the CESTAT was correct in upholding reduction in the mandatory and equal penalty leviable under rule 96ZQ(5) to an amount less than the amount of duty outstanding ?” 3. During the course of hearing of this appeal, the learned counsel for the Revenue Mr.Desai, submitted that the Hon'ble Apex Court in the case of Union of India V/s. Dharamendra Textile Processors, reported in 2008 (231) E.L.T. 3 (S.C.), has held that “when there is a mandatory provision regarding penalty, lessor penalty is not permissible and that no discretion is available on control of penalty under Section 11AC of the Central Excise Act”. It has been further held that mens rea is not an essential ingredient therein. 4. In view of the aforesaid judgment of the Hon'ble Supreme Court, we are of the opinion that the matter is required to be sent back to the Tribunal for fresh consideration and to take appropriate fresh decision in appeal filed by the appellant-revenue, in accordance with law. The Tribunal shall decide the appeal de novo after hearing both the sides and after considering the aforesaid judgment of the Hon'ble Supreme Court. 3 5. The learned counsel for the appellant Mr.Desai submitted that since the issue in question is covered by the judgment of the Supreme Court, it is not necessary to send back the matter to the Tribunal and this Court may decide the appeal on merits. However, the learned Advocate for the respondent Mr.Patil, submitted that in the facts & circumstances of the case, the judgment of the supreme court is distinguishable. However, in our view, the matter is required to be sent back to the tribunal to decide all these aspects de novo. The impugned order of the Tribunal is quashed and set aside and the tribunal to decide the matter afresh in accordance with law. 6. It is clarified that we have not expressed any opinion in any manner and it is for the Tribunal to decide the appeal on the basis of the aforesaid judgment of the Supreme Court and to take appropriate decision in accordance with law. The Tribunal shall dispose of the appeal within a period of three months from the receipt of the Writ of this Court. The Appeal is accordingly allowed to the aforesaid extent by remanding the matter back to the Tribunal. ( J.P.DEVADHAR, J. ) ( P.B.MAJMUDAR, J. )