1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO.20 OF 2006 Commissioner of Central Excise Mumbai-V .. Appellant versus M/s.Zain Plastics .. Respondent ... Mrs.S.I.Shah with Mr.R.B. Pardeshi for the appellant. None for the respondent. CORAM : FI. REBELLO AND D.G. KARNIK, JJ DATED : 29 th July 2009. P.C:- 1. Appeal was admitted on the following substantial questions: i) Whether on the facts and in the circumstances of the case hon’ble CESTAT is justified in setting aside the order of imposing penalty having regard to the mandatory language of Section 11AC of the Central Excise Act, 1944, as amended which state that penalty shall be imposed equal to the amount of duty. ii) Whether under Section 11 AC of the Central Excise Act, 1944, as amended, the hon’ble tribunal has discretion to reduce or to set aside penalty and whether such 2 discretion is not in excess of jurisdiction vested in the hon’ble tribunal. 2. The law considering the judgment of the Supreme Court in Union of India Vs. Dharamendra Textile Processors in 2008(231) E.L.T 3(SC), has taken a view that once an assessee is duty bound, the petitioner payable is proportional to the duty imposed and there is no discretion in the authorities to reduce the penalty. 3. In the instant case, once the duty fees is not bound in our opinion that consequently, impugned order of the Tribunal is set aside and original order as also the order of the Commissioner (Appeals) is restored. 4. Having answered the main question in the instant case, matter was remanded to the Commissioner to re-determine the valuation. This part of the order is not interfered with. 5. In the light of that, question no.(i) is answered in the negative in favour against the assessee and in favour of the revenue. Similarly, question no.(ii) is answered in the negative in favour of the revenue and against the assesee. (D.G. KARNIK, J) (F.I. REBELLO, J)