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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------CENTR.EXCISE APPEAL No. 12 of 2007 UNION OF INIDA V/S M/S B S L LTD & ANR Mr.RISHABH SANCHETI FOR MR. VK MATHUR, for the petitioner

appellant /

Mr.D MEHTA, for the respondent Date of Order : 20.11.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. ORDER ----This appeal against the order of the Service Tax Appellate Tribunal by the Revenue was admitted on 2.3.2007 by formulating the following substantial question: “Whether the learned Tribunal is right in reducing the mandatory penalty, equal to the amount of duty determined under sub section (2) of Section 11AC, imposed under Section 11AC of the Central Excise Act, 1944 on the assessee?” The controversy covered by the question framed is covered by the decision of Hon'ble Supreme Court in Union of India & Ors. vs. M/s. Dharamendra Textile Processors and Ors., JT 2008(11) SC 255, wherein it has been held in paras 26 and 27 that under section 11AC, there is no scope for any discretion. Likewise, it was also held that the plea that Rule 96ZQ and 96ZO have a concept of discretion inbuilt cannot be sustained. In that view of the matter, the question as framed is answered in favour of the revenue and against the assessee. The order of the Service Tax Appellate Tribunal impugned is set aside and the matter is remanded back to the original authority for determining the amount of penalty, which is to be levied from the assessee in accordance with the provisions of section 11AC. Obviously, in determining the amount of penalty, adjudicating authority shall take into account the amount of excise duty held leviable by the appellate authority. ( KISHAN SWAROOP CHAUDHARI ),J. /m.asif

( N P GUPTA ),J.