AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPLICATION NO.10 OF 2003 The Commissioner of Central Excise, Thane – I. .... Applicants Vs. M/s. Vijayalaxmi Textiles Pvt. Ltd. ..... Respondents Mr. P.S. Jetly with Mr. Rajinder Kumar for the applicants. CORAM : SMT. RANJANA DESAI & J.P. DEVADHAR, JJ. DATED : 17TH FEBRUARY, 2009. P.C. :- 1. This application was admitted on 29/6/2005 on the following questions of law. “1. Whether the expression penalty equal to an amount of duty outstanding from him of Rs.5,000 which ever is greater occurring in clause (ii) of Sub Rule 96ZQ of Central Excise Rules 1944 is in nature of mandatory penalty and the adjudicatory authority not legally obliged to impose penalty equivalent to AJN 2 outstanding amount of Rs.5,000/- whichever is great or he has discretion to impose lesser penalty? 2. Whether the CEGAT was right in allowing the appeal of the Respondents after applying the ratio of the decision in the case of Visen Fabrics v. CLE reported in 201 (137) ELT/229?” 2. In the light of the judgment of the Supreme Court in Union of India v. Dharamendra Textile Processors, 2007 (215) ELT 321 (SC), the questions of law raised in the application do require consideration. Hence, the application is allowed. The Tribunal is directed to raise the aforesaid questions of law and forward a statement of case for the opinion of this court. The statement of case may be forwarded to this court as expeditiously as possible. The application is disposed of. [SMT. RANJANA DESAI, J.] [J.P. DEVADHAR, J.]