hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO. 142 OF 2006 The Commissioner of Central Excise ... Appellant Versus M/s. Engineering Products & Steerings Limited... Respondent Mr. A.S. Rao with Mr.J.B. Mishra for Appellant. None for Respondent. CORAM : F.I. REBELLO & A.M. KHANWILKAR, JJ. DATED : OCTOBER 06, 2009 P.C. Appeal was admitted on the following substantial question of law : a. "Whether the CESTAT is correct in law in not imposing the mandatory penalty (equal to the duty demanded and confirmed) even when duty was confirmed under provision to Section 11A of the Central Excise Act, 1944. Section 11 AC of Central Excise Act, 1944 clearly states that where any duty of excise has not been levied or paid or has been short-levied or short- paid or erroneously refunded by reasons of fraud, collusion or any willful misstatement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made there under with an intent to evade payment of duty, the person who is liable to pay duty as determined under sub-section (2) of Section 11 A, shall also be liable to pay a penalty equal to the duty so determined"? Though the Supreme Court in Dharmendra Textiles, 231 ELT 3 SC has held that penalty is mandatory nonetheless in Rajasthan Spinning 238 ELT 3 SC has held that predicates of section 11 AC must be satisfied. In the instant case, appellate authority came to the conclusion that there was dispute regarding classification and consequently there was no intent to evade payment of duty. For the aforesaid reasons, no case made out. Appeal dismissed. (A.M. KHANWILKAR,J.) (F.I. REBELLO,J.)