AGK AGK AGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPLICATION NO.5 OF 2004 The Commissioner of Central Excise & Customs ..Applicant. V/s. M/s.Mahindra Sona Limited ..Respondent. Mr.A.S. Rao with Mr.Rajinder Kumar for the applicant. None for the respondent. CORAM : SMT.RANJANA DESAI & J.P. DEVADHAR, JJ. DATED : 25TH MARCH, 2009. P.C. : 1. Learned counsel for the applicant is present. Respondents have been served. However, nobody is representing the respondents. Affidavit of service is filed. 2. This application was admitted on 23-6-2005 on the following substantial questions of law. a) Whether the order of the tribunal is perverse for the reason that the tribunal found that the respondents conduct not bonafide, as they paid duty only after pointing out by department and contested the show-cause notice. Despite the above findings the tribunal reduced the penalty. b) Whether the judgment of the tribunal can be sustained for the reason that the tribunal has failed to explain as to why the tribunal is interfering with the penalty imposed and confirmed by appellate authority. c) Whether the adjudicating authority has determined the duty liable to be paid by the assessee under sub-section (2) of 11 A of Central Excise Act, 1944 on the grounds of fraud, collusion, for any willful misstatement or suppression of facts, or contravention of any of the provisions of this Act or the rules made there under with interest to evade payment of duty, and has imposed penalty under section 11AC of the Central Excise Act, 1944, equal to the duty so determined, whether the appellate tribunal has any discretion to reduce the mandatory penalty so imposed under section 11AC subsequent to determination of duty demand under sub-section (2) of section 11A. d) Whether the appellate tribunal has the power to substitute its own discretion for that of the adjudicating authority, who has been conferred with the power to impose penalty by way of applying the provisions of the C. Excise Act, 1944 without any justification. 3. The question, whether the appellate tribunal has discretion to reduce the mandatory penalty imposed under Section 11AC is involved in this application. In the light of judgment in Union of India V/s. Dharmendra Textile Processors, 231 ELT 3, these questions require consideration. Therefore, we allow the central excise application and direct the tribunal to send a statement of case raising above questions for the opinion of this Court. The statement of case may be sent as expeditiously as possible. 4. The application is accordingly disposed of. (Judge) (Judge)