1 bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO.71 OF 2007 The Commissioner of Central Excise ..Appellant Vs. M/s.Trent Ltd. (Formerly M/s.Lakme Ltd.) ..Respondent Mr.P.S.Jately with Mr.R.B.Pardeshi for appellant. Mr.M.H.Patil with Ms.Padmavati Patil for respondent. CORAM :- V.C.DAGA & K.K.TATED,JJ. DATE : 3RD MARCH,2010 P.C. Heard. Perused appeal. 2. This appeal was admitted basically to consider the question of penalty levied under Section 11AC of the Central Excise Act,1944. The show cause notice was issued to the respondent and the same was adjudicated upon and confirmed. It, ultimately culminated in the order-in-original, wherein all the allegations made in the show cause notice were confirmed including that of relating to the suppression of certain vital facts from the Department. 3. Mr.Jately, learned Counsel for the appellant submits that the question relating to the imposition of monetary penalty under Section 11AC has now been concluded by the judgment of the Apex Court in the case of Union of India Vs. Dharmendra Textile Processors, 2008(231) ELT 3 (SC) followed by another judgment in the case of Union of India Vs. Rajasthan Spinning & Weaving Mills 2009 238 ELT 3 (SC). He, thus, submits that the impugned order is liable to be quashed and set aside and the question of law is required to be answered in favour of the Revenue. 4. In reply, Mr.Patil, learned Counsel for the respondents urged that the appeal was directed against all the adverse findings including that the duty was not paid with intention to evade the same as was recorded in the order-in-original passed by the Adjudicating Authority. He submits that his appeal was allowed on one of the 2 grounds holding that the appellant- respondent had paid liability before issuance of the show cause notice as such penalty under section 11AC was not leviable. This view of the Tribunal was based on the law holding the field at the relevant time. 5. Mr.Patil submits that since respondent had succeeded before the Tribunal, may be on one of the points raised, the respondent did not find it necessary to challenge the order of the Tribunal, which did not deal with other contentions, either before this Court or by moving an application for rectification. He, thus, submits that in view of the changed legal scenario, it would be in the interest of justice to remand this matter to the Tribunal with directions to consider and record findings on all other challenges which were set up against the order-in-original in memo of appeal. 6. Having heard both the learned Counsel for the parties, submissions made by the respondents deserve consideration. Section 11AC brings the assessee within its net if the circumstances mentioned therein are found to exist. The order-in-original had brought the assessee-respondent herein within the net of Section 11Ac. The specific finding recorded in this behalf was the subject matter of challenge in the appeal, which is clear from the grounds raised in the memo of appeal. In absence of specific finding about this particular aspect of the matter, one has to presume that the said ground was held against the respondent assessee though at the same time ultimate appellate order is in favour of the respondent assessee. 7. In order to cure above anomaly, it is necessary to quash and set aside the impugned order without examining the merits and demerits thereof and restore appeal to the file of the Tribunal with further directions to re-hear the matter and decide all the contentions raised by the respondent/appellant in the memo of appeal by a reasoned order following principles of natural justice. Order accordingly. All contentions on merits are kept open. The Tribunal is expected to decide the matter with expeditious dispatch at any rate within four months from the date of receipt of copy of this order. No order as to costs. (K.K.TATED,J.) (V.C.DAGA,J.)