AGK AGK AGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPLICATION NO.19 OF 2001 The Commissioner of Central Excise, Mumbai-III, Mumbai ..Applicant. V/s. M/s.J.K. Processors ..Respondent. Ms.S.V. Bharucha with Mr.K.R. Chaudhari for the applicant. Mr.A. Misal i/by G.N. Salunke for the respondent. CORAM : SMT.RANJANA DESAI & J.P. DEVADHAR, JJ. DATED : 28TH JANUARY, 2009 P.C. : 1. The application was admitted on 17-3-2005 on the following substantial question of law. Whether the expression ‘penalty equal to an amount of duty outstanding from him or Rs.5,000/- whichever is greater’ occurring in clause (ii) of sub-rule (5) of Rule 962 O of Central Excise Rules, 1944, is in the nature of mandatory penalty and the adjudicating authority is bound to impose a penalty equivalent to outstanding amount of duty of Rs.5,000/- whichever is greater or he has discretion to impose lesser penalty." 2. Learned counsel for the applicant points out that the above question has been answered in favour of the revenue by the Supreme Court in Union of India V/s. Dharmendra Textiles Processors (2008) 231 ELT 3 (S.C.). 3. In view of this, we allow the central excise application and direct the tribunal to send statement of case raising above question for the opinion of this Court. The statement may be send as expeditiously as possible. 4. The application is accordingly disposed of. (Judge) (Judge)