- (1.)This is an application made by th Revenue - Commissioner, Central Excise & Customs, Indore under Section 35- H(1) of the Central Excise Act, 1944 requesting this Court to call for the reference on the question mentioned infra :-
"8(A). - the following question of law arises out of the order of the appellate Tribunal :-

Whether penalty under Section 11AC of the Central Excise Act, 1944 would be equal to the amount of duty payable by the assessee in cases involving fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty ?"

(2.)The issue relates to imposition of penalty on respondent (Assessee) under the provisions of Central Excise Act. By order, dated 9-12-2002, passed in appeal No. A/1194/02-NB (D) = 2003 (160) E.L.T. 833 (T), the Tribunal upheld the penalty in principal imposed by the lower authorities on the assessee, but having regard to all facts and circumstances of the case reduced it to Rs. 25,00,000/-. This is what the learned Members of the Tribunal held in impugned order while allowing the appeal filed by the assessee in part in para 5.3 :-
"5.3. - After considering the submissions of both the sides, though we agree with the learned Senior Departmental Representative that penalty is imposable on the appellants, we also agree with the learned Advocate that the quantum of penalty is excessive in view of the facts and circumstances of the present matter. The interest of justice will be met if the appellants are directed to pay a penalty of Rs. 25 lakhs. We order accordingly. The appeal is thus partly allowed."

(3.)The Commissioner of Central Excise & Customs is not satisfied with the reduction of the penalty imposed upon the assessee to the extent of Rs. 25,00,000/- quotedand therefore, sought reference from the Tribunal to this Court arising out of aforesaid order. Since, the Tribunal declined to make reference, holding therein that no question of law arises which can be referred this court for answer on merits and therefore, the Commissioner, Central Excise & Customs has invoked the powers of this Court under Section 35-H(1) of the Act, requesting this court to direct the Tribunal to refer the case to this Court for answer on merits.