( 1 ) RULE. Ms Dharmishta Raval, learned senior standing counsel for the Central Government waives services of Rule on behalf of the respondents. In the facts and circumstances of the case, the petition is taken up for final disposal today.

( 2 ) WHAT is challenged in this petition under Article 226 of the Constitution is the order-in-appeal No. 68 dated 23. 10. 2002 passed by the Commissioner (Appeals), Central Excise and Customs, Surat arising from the order-in-original No. 99 dated 16. 7. 2001 passed by the Deputy Commissioner, Central Excise and Customs, Division-I, Vapi by which the appellate authority reduced the amount of penalty under Rule 96zq (5) (ii) of the erstwhile Central Excise Rules, 1944 from Rs. 4,50,000/= to Rs. 2,25,000. 00.

( 3 ) THE facts leading to this petition are as under:-3. 1 the petitioner-assessee was having one Hot Air Stenter Machine containing five chambers upto the month of November, 1999 and was paying Central Excise Duty as per Section 3a of the Central Excise Rules, 1944 on the basis of capacity of production. The petitioner installed one new Hot Air Stenter Machine containing three chambers and started production from 2. 12. 1999