ORDER

1. Heard on the question of admission.

2. This petition under Article 226 of the Constitution of India has been filed against the order dated 11.9.2020 passed by Board of Revenue, Gwalior in case No. Appeal/939/2019/Gwalior/Aa.A, order dated 26.7.2019 passed by Excise Commissioner, in case No. REC/86/2016-17 and order dated 13.4.2016 passed by Deputy Excise Commissioner (Flying Squad), Gwalior in case No. Aab/Aas/2016/591, by which the penalty for excess transit loss under rule 16 read with rule 19 of M.P. Foreign Liquor Rules, 1996 to the tune of Rs. 23,93,015/- has been imposed.

3. The necessary facts for disposal of the present petition in short are that the petitioner is a company registered under the Companies Act, 1956 and is a legal entity in the eyes of law. It is the case of the petitioner, that the petitioner has a bottling unit at Gwalior, and during the course of its usual business, the petitioner sent a consignment vide export permit Nos.755, 756 and 767 dated 23.6.2015 to Patna. The liquor was being sent in Truck bearing registration No. MP 07 HB 3842, however, it is alleged that the Truck met with an accident in Arbal District of Bihar and the matter was reported by the Driver to the police.

4. By the impugned order it has been held that 11127.06 proof liter of liquor was not delivered at the destination and thus, there was a transit loss.

5. A show-cause notice was issued to the petitioner on 10.3.2016. It is submitted that the petitioner sent its reply to the Deputy Excise Commissioner informing that since, the truck had met with an accident, therefore, there was an excessive transit loss. Since, the loss is not attributable to the petitioner, therefore, as per provision of rule 19 of M.P. Foreign Liquor Rules, 1996 (In short “Rules, 1996”), the petitioner is not liable to pay any penalty.

6. It is the case of the petitioner, that the Dy. Excise Commissioner, without considering the reply submitted by the petitioner, passed the order dated 13.4.2016, thereby imposed the penalty of Rs.23,93,015/-. It is submitted that instead of considering the reply, the Deputy Excise Commissioner, wrongly mentioned that the reply was not received. This shows that how the respondents are deciding the matters.

7. The petitioner filed an appeal before the Excise Commissioner, with elaborate grounds raised in the memo of appeal, however, the Excise Commissioner, also dismissed the appeal in a most mechanical manner. It is further submitted that similarly, the appeal has been dismissed by the Board of Revenue, thereby affirming the orders of the Authorities below.

8. Challenging the orders passed by the Board of Revenue as well as M.P. Excise Commissioner, and Dy. Excise Commissioner, it is submitted by the Counsel for the petitioner, that since, the truck which was transporting the liquor, met with an accident in Distt. Arbal, therefore, driver of the truck gave an information to the concerning police station on 3.7.2015. Similarly, an information was given to Product Superintendent, Arbal (Bihar) about the accident and sought permission to transport the remaining liquor by another truck. Accordingly, the Product Superintendent, Arbal, by its letter dated 10.7.2015 granted permission for further transportation of remaining liquor by another truck bearing registration No. MP 07 HB 3569. It is submitted that thus, it is clear that it was beyond the control of the petitioner, therefore, the petitioner is not liable to pay penalty as per the provisions of Rules, 1996.

9. Per contra, the Counsel for the State vehemently opposed the petition. It is submitted that it is incorrect to say on the part of the petitioner, that it had submitted its reply before the Dy. Excise Commissioner. On the contrary, it is mentioned in the memo of appeal, that only when the petitioner received the copy of order dated 23.4.2016 passed by Dy. Excise Commissioner, it came to know that the order was already passed before even taking the reply from the