*1* kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO.89/2004 Union of India. Through The Commissioner of Central Excise. ..Appellants -Versus- M/s Kriplon Synthetics (P) Ltd.. ..Respondents. ........... Mr.J.B.Mishra, Advocate for the Appellants. Mr.V.M.Doiphode, 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 Respondents. 2 This appeal was admitted by an order dated 26.06.2006 to consider the following substantial question of law:- “Whether the expression “penalty equal to an amount of duty outstanding from him or Rs. 5,000/- whichever is greater” occurring in clause (ii) of sub-rule (5) of Rule 962 Q of Central Excise Rules, 1944, is in the nature of mandatory penalty and the adjudicating authority is bound to impose a penalty equivalent to outstanding amount of duty of Rs.500/- whichever is greater or he has discretion to impose lesser penalty?” *2* 3 The learned counsel for Respondents brought to our notice one of the orders passed by this Court in Central Excise Appeal No.84/2004 in case of The Commissioner of Central Excise Vs. M/s Cewat India Processors decided on 02nd December, 2008 (unreported) wherein the order of Tribunal was quashed and set aside and the matter was remanded to the Tribunal for fresh consideration in the light of judgment of the Apex Court in case of Union of India Vs. Dharmendra Textile Processors 2008 (231) ELT 3 (SC), wherein, it has been held that when there is a mandatory provision regarding imposition of penalty, then imposition of lessor penalty is not permissible. Hence, no discretion is available on the question of penalty under Section 11AC of the Central Excise Act. It is further held that mens rea is not an essential ingredient therein. In this view of the matter, the Tribunal was directed to consider the issue afresh. 4 The learned counsel for Respondents further submits that effect of deletion of Section 3A of the Central Excise Act also has its own effect on the question. We have no manner of doubt that if such issue is canvassed before the Tribunal, the Tribunal shall certainly decide the same and deal with all rival contentions of the parties. 5 In the aforesaid view of the matter, the impugned order *3* is quashed and set aside. The matter is remanded back to the Tribunal for deciding it afresh. All contentions of the parties on merits are kept open. 6 The Tribunal is expected to decide the matter as expeditiously as possible, preferably within a period of six months from the date of receipt of the copy of this order. No order as to costs. (K.K.TATED, J.) (V.C.DAGA, J.)