*1* kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO.86/2004 The Commissioner of Central Excise. ..Appellants -Versus- M/s Monitex Dye Prints. ..Respondents. ........... Mr.A.S.Rao a/w Mr.J.B.Mishra, Advocates for the Appellants. Mr.V.Shreedharan a/w Mr.Jas Sanghvi, Advocates i/b PDS Legal 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 the Respondents. 2 This appeal was admitted by an order dated 14.09.2005 to consider the following substantial question of law:- “Whether the Hon’ble CESTAT was correct in setting aside the mandatory and equal penalty imposed under Rule 962 Q (5)(ii) on the assessee when the assessee failed to pay duty within time prescribed for such payment?” 3 The Tribunal while dealing with the aforesaid question has observed as under:- “3. The other dispute relates to calculation of the average value of Rs.30 per sq.m. based on the value of clearances during the preceding financial years. The appellant has taken into consideration only the value of the *2* clearances for domestic consumption. The authorities below took the view that the value of clearances for export has also to be taken into consideration. On going through the relevant notification No.36/98 dated 10.12.1998 and Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, we find no provision for excluding the clearances for export for the purpose of calculation of the average value of Rs.30 per sq.mt.. Under these circumstances, the contention raised by the appellant on this issue is rejected. 4. In the light of the above, the order impugned is modified to the extent that the galleries cannot be included in fixing the annual capacity. In the order impugned penalty of Rs.6.60 lakhs imposed on the appellant has been confirmed. Since the demand is within the normal period, we do not find any reason to sustain the imposition of penalty. The penalty is, therefore, set aside. The appeal stands partly allowed in the above terms.” 4 Reading of the above paragraphs clearly spells out that the demand was within a normal period, as such, no penalty was imposable. If that be so, no fault can be found with the findings recorded by the Tribunal. Consequently, the question framed is answered against the Revenue and in favour of the Respondents. 5 In the result, the appeal is dismissed with no order as to costs. (K.K.TATED, J.) (V.C.DAGA, J.)