Judgment:
1. This application is for waiver of pre-deposit of an amount of penalty of Rs. 10,000/- and for stay of recovery thereof, pending the appeal.
2. Examined the records and heard both sides. The applicants are registered dealers of excisable goods. On 2-/-99 a consignment of such goods being transported in a tempo under cover of invoice dated 30-6-99 were intercepted by officers of Central Excise. The authorised signatory of the appellant-company stated to the officers under Section 14 of the Central Excise Act that he was not able to explain why the goods were being transported on that day on the strength of an invoice raised two days before as also why the goods were being transported in a different vehicle than the one mentioned in the invoice. The officers seized the goods along with the vehicle and took further proceedings against the applicants, which culminated in a show cause notice, which, inter alia, proposed to impose penalty on the party under Rule 173Q.The proposal was contested. In adjudication, the Deputy Commissioner, apart from confiscating the goods with option for redemption thereof, imposed a penalty of Rs. 10,000/- on the applicants. In the appeal preferred by the party against the order of adjudication, the Commissioner (Appeals) set aside the confiscation but upheld the penalty under Rule 173Q(l)(bbb). Hence the appeal and the present application.
3. Ld. Consultant for the applicants submits that they have not committed any offence contemplated under Clause (bbb) ibid and that there is no finding to this effect in the impugned order. He, therefore, claims a strong prima facie case and prays for complete waiver of pre-deposit and stay of recovery in respect of the penalty.
Ld. SDR, Shri A.S. Bedi opposes this prayer and invites my attention to the admissions made by the party at the investigative stage as also to the fact that the invoice covering the seized goods, undisputedly, did not contain the correct particulars about the vehicle. According to him, this is enough to invoke Clause (bbb) against the party.
4. Examined the submissions. In the show cause, the proposal was to impose penalty under Rule 173Q. The adjudicating authority imposed a penalty of Rs. 10,000/- without mentioning any provision of law. The lower appellate authority specifically held the penalty under Rule 173Q(l)(bbb) of the Central Excise Rules, 1944. On a perusal of this provision of law, I note that mens rea is a necessary ingredient of this provision inasmuch as it has been laid down that a registered dealer who "enters willfully wrong or incorrect particulars in the invoice issued for the excisable goods dealt by him with intent to facilitate the buyer to avail of credit of the duty of excise in respect of such goods which is not permissible under the rules" is liable to penalty. The lower appellate authority, in its order, has not brought out any such in-tent against the parly. Therefore, the applicants appear to have a strong prima facie case. Accordingly, there will be waiver of pre-deposit and stay of recovery in respect of the penalty amount. The appeal will be heard on 5-4-2002.