1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO.249 OF 2007 The Commissioner of Central Excise. ..Appellant. Vs. M/s.BOC India Ltd. ..Respondents. Mr.J.BMishra for appellant. None for Respondents. CORAM : F.I. REBELLO & A.M. KHANWILKAR, JJ. DATED : OCTOBER 7, 2009 P.C. : 1. The Appeal was admitted on the following questions: “1. Whether in the facts and circumstances of the case, the CESTAT was justified in law in reducing the penalty amount imposed on the respondents under Rule 173Q of the Central Excise Rules, 1944 for intentionally issuing the fraudulent invoices to enable M/s. Asiatic Gases Ltd. to avail fraudulent Modvat Credit ? 2. Whether in the facts and circumstances of the case, the CESTAT was justified in law in holding that while imposing the penalty, the number of invoices is the criteria and not the quantum of the revenue evaded and accordingly, reducing the penalty amount to Rs.15,000/- by holding that there were 15 impugned invoices in respect of which infractions have been made ?” 2. We have perused the impugned order. We find that on confirming the duty 2 demand, penalty was imposed. Apart from that another amount of penalty of Rs. 4,47,000/- was imposed under Rule 173Q of the Central Excise Rule, 1944. The Tribunal considering this part of the penalty found it to be harsh and reduced it to Rs.15,000/-. Once there be discretion under the rule out that has been exercised on the ground that the penalty was harsh, in our opinion, no question of law would arise. That finding cannot be said to as amounting to error of law or as perverse. 3. Considering that we find no error in the order as passed. There is no merit in question No.1. Consequently, Question No.2 would not arise. Consequently, the Appeal is dismissed. (A.M. KHANWILKAR,J.) (F.I. REBELLO,J.)