1 CEAX28.04.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION KJ CENTRAL EXCISE APPEAL NO.28 OF 2004 The Commissioner of Central Excise, Mumbai )..Appellant Vs. P & B Laboratories Ltd., )..Respondents ---- Mr.R.Ashokan i/by Mr.Suresh Kumar for the appellant. Mr.S.N.Kantawala i/by Brijesh Pathak for the respondents. ---- CORAM : J. P .DEVADHAR & MRS.MRIDULA BHATKAR,JJ DATE : 6/1/2011. PC 1 This appeal was admitted on 29.6.2005 on the following substantial question of law :- “Whether the Tribunal was right in law in upholding the reduction made by the Commissioner (Appeals) in the mandatory and equal penalty leviable under Section 11AC to an amount less than the duty determined under Section 11A(2) of the Central Excise Act, 1944 ? 2 Learned Counsel for the parties state that the dispute raised in this Appeal regarding the mandatory levy of penalty under 2 CEAX28.04.sxw Section 11AC of the Central Excise Act 1944 is covered by the decision of the Apex Court in the case of Union of India Vs. Rajasthan Spinning & Weaving Mills reported in 2009 (238) E.L.T. 3 (SC). Learned Counsel for the respondents brought to our notice that as regard the quantum addition the Appeal is pending before the Apex Court in P & B Laboratories Ltd. v. Commissioner- 2005 (184) E.L.T. A37 (S.C). 3 Since the issue regarding the levy of penalty is covered by the decision of the Apex Court, in our view, it would be just and proper to set aside the order of CESTAT and remand the matter back to the CESTAT for deciding the issue afresh in accordance with law. Accordingly, order of the CESTAT dated 23.10.2003 (Exhibit-F) to the Appeal is quashed and set aside and the matter is restored to the file of CESTAT for deciding the question raised in this appeal, in accordance with law. Appeal is disposed of in accordance with the aforesaid terms. (MRS.MRIDULA BHATKAR,J) (J.P.DEVADHAR,J)