1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO. 34 OF 2007 The Commissioner of Central Excise ..Appellant. Vs. M/s. Inter Continental Industries. ..Respondents. Ms.P.S.Jetly with Mr.J.B.Mishra for appellant. None for Respondents. CORAM : F.I. REBELLO & A.M. KHANWILKAR, JJ. DATED : OCTOBER 7, 2009 P.C. : 1. The Assessing Officer held that duty was evaded and consequently imposed penalty under section 11AC. The First Appellate Authority arrived at a conclusion that it is only after the search and scrutiny, the records revealed the evasion of the duty, the duty was deducted and in such a case penalty is justifiable; accordingly, confirm the order. 2. The matter was taken in appeal. The learned Assistant Commissioner relied on the Judgment of larger Bench in case of CCE, Delhi-III v/s. Machino Montell (I) Ltd. [2004(168) ELT-466(Tri-LB)] on the ground that as duty has been paid earlier, no penalty would be levied. Reliance is also place on the Judgment of Supreme Court in the case of Ravi Gupta v/s. Commissioner of Sales Tax, 2 Delhi[2009(237) ELT 3 SC]. Once it is held that there was an evasion of duty and duty is payable, there is no discretion in the authority but to impose equivalent penalty under section 11AC. 3. The Court thereafter in Union of India V/s. Rajasthan Spinning and Weaving Mills[2009(238) ELT 3 (SC)] has further elaborated that to impose penalty, provision of section 11AC must be satisfied. In the instant case, the Tribunal has not addressed to that issue. Considering the above, following order. “Impugned order is set aside. The matter is remanded back to the Tribunal for considering issue for imposition of penalty in terms of law declared by the Supreme Court in Rajasthan Spinning and Weaving(supra). Appeal disposed of on the above terms.” (A.M. KHANWILKAR,J.) (F.I. REBELLO,J.)