1 cexa35-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO.35 OF 2011 Commissioner of Central Excise, Nasik ..Appellant. V/s. M/s. Sal Steel & Anr. ..Respondents. Mr. R. Asokan for the appellant. Mr. Nilesh Rathi for the respondents. CORAM : J.P. DEVADHAR AND SMT. R.S. DALVI, JJ. DATED : 7TH APRIL, 2011 P.C. :- 1. This appeal is filed by the Commissioner of Central Excise, Nasik against the order passed by the CESTAT on 6/7/2010 in Appeal No. E/8/07-Mum. By the said order, penalty levied under Section 11AC of the Central Excise Act, 1944 has been reduced to 25%. The Apex Court in the case of Union of India V/s. Dharmendra Textile Processors reported in 2008 (231) ELT 3 (S.C;.) and Union of India V/s. Rajendra Spinning & Weaving Mills reported in 2009 (238) ELT 3 (S.C.) has held that penalty under Section 11AC of the Central Excise Act, 1944 is mandatory. In the present case, whether the penalty is imposable under 2 cexa35-11 Section 11AC and if so, whether it is mandatory has not been considered by the CESTAT. In these circumstances, we set aside the order dated 6/7/2010 and restore the appeal to the file of CESTAT for passing fresh order on merits in accordance with the law after hearing the assessee. 2. The appeal is disposed of accordingly with no order as to costs. (SMT. R.S. DALVI, J.) (J.P. DEVADHAR, J.)