1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO. 95 OF 2007 CENTRAL EXCISE APPEAL NO. 95 OF 2007 CENTRAL EXCISE APPEAL NO. 95 OF 2007 The Commissioner of Central Excise & Customs. ...Appellant Versus Nakoda Textile Industries Ltd. & Ors. ...Respondents Mr. R.Ashokan for the appellant. Mr. Prakash Shah i/b. PDS Legal for the respondents. CORAM: F.I.REBELLO AND CORAM: F.I.REBELLO AND CORAM: F.I.REBELLO AND J.H.BHATIA, JJ. J.H.BHATIA, JJ. J.H.BHATIA, JJ. DATE: 16th April, 2009. DATE: 16th April, 2009. DATE: 16th April, 2009. P.C. P.C. P.C. 1. Both the A.O. as well as the appellate authority have held in favour of the Revenue to the extent of payment of excise duty under the proviso to sub-section (1) of section 11A of the Central Excise Act, 1944 and imposition of penalty under Section 11AC of the said Act. 2. After going through the Judgment of the learned 2 Tribunal, we find that the issues have not been dealt with in the proper perspective. The Tribunal ought to have fixed the point for determination and then decided the same. We do not find that approach in the order of the Tribunal. 3. The learned Counsel for the respondents points out that so far as the penalty is concerned, the issue is covered by the Judgment of the Supreme Court in the case of Amrit Foods vs. Commissioner of Central Excise, U.P. Amrit Foods vs. Commissioner of Central Excise, U.P. Amrit Foods vs. Commissioner of Central Excise, U.P. 2005 (190) ELT 433 (S.C.) 2005 (190) ELT 433 (S.C.) 2005 (190) ELT 433 (S.C.). It is submitted that considering the said Judgment, no purpose would be served in remanding the matter back on that point. 4. We have heard the learned Counsel. Insofar as the present Appeal is concerned, we are of the opinion that the submission made on behalf of the respondents is correct. No penalty could have been imposed without specifying in the show cause notice the relevant provision under which the penalty was sought to be imposed. The show cause notice does not indicate the relevant clause to Rule 173Q of the Central Excise Rules,1944 based on which penalty was sough to be imposed. In the light of that the order of the Tribunal to that extent is upheld. 3 5. Insofar as the issue of payment of duty under Section 11A and interest under Section 11AB are remanded back to the Tribunal for de novo consideration. 6. It was contended by Counsel for the respondents that no interest could have been levied as at the relevant time Section 11AB was not in force. That contention can be raised before the Tribunal. Appeal accordingly partly allowed and disposed of. (F.I.REBELLO,J.) (F.I.REBELLO,J.) (F.I.REBELLO,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)