BALIA, J. - (1.) BY this revision under Sec. 86 (2) of the Rajasthan Sales Tax Act, 1994 (for short `the Act'), the petitioner has challenged the order dated 7. 1. 1999 passed by the Rajasthan Tax Board, Ajmer whereby the Rajasthan Tax Board has set aside the order dated 15. 12. 1995 passed by the Assessing Officer as also the order dated 5. 10. 1996 passed by the Deputy Commissioner (Appeals) levying penalty against the assessee- respondent for carrying unfilled declaration form No. ST-18-A alongwith the goods in transit.
(2.) THE brief facts giving rise to this revision are, that on 16. 11. 1995, Truck No. GJ-8t-4142 carrying 48 Refrigerators of Allwyn Brand was stopped and checked near Pindwada on Ahemdabad- Jodhpur via Pali route and it was found that these Refrigerators were transported from Hyderabad and its destination was Jaipur at the Branch Office of the assessee-respondent. All relevant documents like Bill, Bilty, Insurance papers etc. were available with the Transporter. THE declaration form ST-18a was also available with the Transporter accompanying the documents duly signed by the Dealer but it was not duly filled in. THE Assessing Officer found that carrying of incomplete declaration Form ST-18a alongwith the goods in transit is the breach of the provisions of Sec. 78 of the Act and hence he seized the goods and issued a notice for levying penalty against the assessee-respondent. In response to the above notice, the Manager of the assessee-dealer appeared before the Assessing Officer and prayed for releasing the goods and the goods were released. However, after hearing the consignee, the penalty for a sum of Rs. 1,06,560/- was levied against the assessee-respondent under Sec. 78 (5) of the Act by the Assessing Officer vide his order dated 15. 12. 1995. Against the order dated 15. 12. 1995, the assessee-respondent filed an appeal before the Deputy Commissioner (Appeals), who affirmed the order dated 15. 12. 1995 passed by the Assessing Officer vide his order dated 5. 10. 1996. Thereafter, the assessee-respondent filed a further appeal before the Rajasthan Tax Board, Ajmer. The Board vide its Judgment dated 15. 2. 1999 allowed the appeal filed by the assessee-respondent and set aside the order dated 15. 12. 1995 passed by the Assessing Officer as affirmed by the Deputy Commissioner (Appeals ). Hence this revision by the Revenue. It has been urged by Mr. Sangeet Lodha, the learned counsel for the Revenue that in this case, breach of the provisions of Sec. 78 (5) of the Act has been duly proved and thus, penalty has been validly levied against the assessee-respondent and merely on the ground of absence of mens rea, the penalty imposed by the Assessing Officer could not have been set aside by the Rajasthan Tax Board. According to him, the provisions in this regard are vitally different in Sec. 78 (5) than the corresponding provisions of Sec. 22-A (7) of the repealed Act. On the other hand, Mr. Vineet Kothari, the learned counsel for the respondent has contended that Sec. 78 of the Act is in substance para materia with the provisions of Sec. 22-A of the Rajasthan Sales Tax Act, 1954 (Repealed Act) and therefore, the principles laid down in Mahaveer Conductors vs. Assistant Commercial Taxes Officer (1), would fully govern the present case.
(3.) SEC. 22-A of the Rajasthan Sales Tax Act, 1954 has been replaced by S. 78 of the Rajasthan Sales Tax Act, 1994 providing for establishment of check-post and inspection of goods while in movement. To decide the controversy involved in the instant case, here it will be appropriate to quote the provisions of S. 22-A (7) of the Rajasthan Sales Tax Act, 1954 and S. 78 (5) and (6) of the Rajasthan Sales Tax Act, 1994 in juxta position: " Repealed Act "s. 22-A (7) (a) The officer-in-charge of the check post or the Officer check-post or barrier or any other Officer not below the rank of an Assistant Commercial Taxes Officer, empowered in this behalf may, after giving the owner or person incharge of the goods a reasonable opportunity of being heard and after holding such further enquiry as he may be deem fit, impose on him for possession of goods not covered by goods vehicle record, and other documents prescribed under sub-S. (3) or for submission of false declaration or documents, a penalty not exceeding 30% of the value of such goods, as may be determined by such officer. Provided that where the goods are being carried without proper documents as required by sub-S. (3) or with any false declaration or statements and the owner or the incharge or the driver of the vehicle, boat, or animal carrying such goods is found in collusion for such carrying of goods, the vehicle, boat or animal shall also be seized by the Officer empowered under sub-S. (7), and such officer, after affording an opportunity of being heard to such owner, incharge or driver may impose a penalty not exceeding 30% of the value of the goods being carried and shall release the vehicle, boat or animal on the payment of the said penalty, or on furnishing such security in such form as prescribed under clause (b) of sub-S. (7): Provided further that when an owner, incharge or driver of a vehicle, boat or animal is found guilty second time of the offence mentioned in the preceding proviso, he shall be liable to maximum penalty as mentioned in the preceding proviso and the vehicle, boat or animal carrying the goods may be kept, seized and detained for a period not exceeding 30 days after the date of the payment of the penalty or furnishing of the security. (b) Such Officer may release any of the goods seized under sub- section (5) or sub-section (6) on payment of the penalty under clause (a) on furnishing such security in such form as may be prescribed for the payment thereof, as he may consider necessary. " " New Act "s. 78 (5) The Incharge of the check-post or the officer empowered under sub-S. (3), after having given the person incharge of the goods a reasonable opportunity of being heard and after having held such enquiry as he may deem fit, shall impose on him for possession or movement of goods, whether seized or not, in violation of the provisions of clause (a) of sub-section (2) or for submission of false or forged documents or declaration, a penalty equal to thirty percent of the value of such goods. (6) During the pendency of the proceedings under sub-section (5), if anybody appears before the Incharge of the check-post or the officer empowered under sub-S. (3) and prays for being impleaded as a party to the case on the ground of involvement of his interest therein, the said incharge or the officer on being satisfied may permit him to be impleaded as a party to the case; and thereafter, all the provisions of this section shall mutatis mutandis apply to him. (7) The incharge of the check-post or the officer empowered under sub-S. (3) may release the goods to the owner of the goods or to anybody else duly authorised by such owner, if seized and not already released under clause (c) or sub-S. (4), on payment of the penalty imposed under sub-S. (5) or on furnishing such security for the payment thereof, as such incharge or officer may consider necessary. [no such provision in the Repealed Act]" A comparison of two provisions make it clear that under the new Act now additional provision has been made to levy penalty against owner of the goods under sub-S. (6) of S. 78, provided such owner of goods makes an application to be impleaded as party to such proceedings and such prayer is granted. However, requirement of giving an opportunity of hearing to the party against whom penalty is proposed to be levied and holding such enquiry as is deemed fit before levy of penalty remains the same. The requirement in this regard remain the same under the New Act as under the Old Act. In Mahaveer Conductor's case (supra), the Court has laid down that the law does not provide that once the goods in transit are found to be unaccompanied with the requisite documents, the levy of penalty is automatic and if that were so, the provision for issuing a show cause notice to the owner of transporter will be meaningless. Notices are issued to the person likely to be affected by the order, only with a view to give him an opportunity against the proposed penalty. Such an opportunity must necessarily include the opportunity to show that no penalty is leviable. ;