Judgment:
1. The appeal is against the order of the Commissioner (Appeals), dismissing an appeal filed by the assessee against the order of the Assistant Commissioner in which he has ordered confiscation of 250 kilogram of niacinamide manufactured and cleared by the appellant (with an option to redeem it on payment of fine of Rs 20000/- and imposed a penalty of Rs 5000/-.
2. I am unable to accept the request for adjournment on the ground that the advocate of the appellant is out of station. No vakalamama or other evidence of an advocate engaged, has been produced. I have read the memorandum of appeal and other papers and also heard the departmental representative.
3. The reason for confiscation of the goods and imposition of penalty was that the goods were being carried without a valid gate pass as required by Rule 52A. The Assistant Commissioner FINDS, in his order, that duty had been paid on the goods and the gate pass issued prior to their removal from the factory, but it could not accompany the truck in which the goods were carried because the driver left the invoice in the office of the carrier. He has however ordered confiscation of the goods and imposed a penalty on the ground that the requirement of Rule 52A has been contravened. The Commissioner (Appeals) has not found it possible to interfere with the Assistant Commissioner's order.
4. The ground in the appeal essentially is that duty had been paid on the goods and absence of the gate pass was due to a mistake on the part of the driver of the vehicle. As I have noted, the Assistant Commissioner accepts this contention but finds notwithstanding the contravention of the provisions of Rule 52A. The contention in the appeal that penalty cannot be imposed in the absence of mens rea is clearly unacceptable in the present circumstances of the case. Rule 52A makes liable for penalty any person who transports excisable goods from a factory without a valid gate pass and renders the goods liable for confiscation. Therefore, confiscation of the goods has to be upheld.However, I do not think penalty was imposable on the appellant Penalty of Rs 5000/- in any case is not provided in Rule 52A, which provides the maximum penalty of Rs 1000/-. The appellant had handed over the gate pass to the carrier of the goods, as has been accepted by Danawade, the owner of the vehicle which carried the goods. It cannot therefore be said that the appellant carried or transported the goods without a valid gate pass. Whether the carrier of the goods is liable to penalty is not in issue before me. Having regard to the fact that duty had been paid on the goods and the failure to carry the gate pass was not by the assessee but by the carrier of the goods, I reduce the redemption fine to Rs 5000/-