- (1.) THIS is a revision application under Section 14 (1) of the RST Act by the Assessing authority | against an order dated 23-5-68 by the Dy. Commissioner, Commercial Taxes (Appeals. II), Jaipur against an order dated 21-1-65 imposing on the dealer, M/s. United Auto Stores of Jaipur, a penalty of Rs. 3000 under Section 16 (1) (c) of the RST Act. Originally a composite penalty of Rs. 1600 had been imposed on the dealer under Section 16 (l) (b) and (c) by the assessment order dated 16-9 64 in respect of the period 1-4-61 to 31-3-62. As stated in the Dy. Commissioner' order dated 23-5-68 the penalty was set aside by an earlier appellate order and no direction was given in that appellate order for a fresh order by the assessing authority regarding the penalties.
(2.) THE assessing authority, however, issued fresh notice to the dealer for penalty under Section 16 (l) (c ). THE dealer failed to appear on the appointed date and the assessing authority imposed a penalty of Rs 3000 on him by order dated 21-8-65. On an appeal, the Dy. Commissioner set aside this penalty by his order dated 23. 5-68. THE departmental representative said that the Dy. Commissioner erroneously set aside the penalty as there was no bar against penalty being re-imposed after fresh notice, if the penalty had been set aside on a technical ground. He referred to Sales Tax Revision No, 481/1967/jaipur (State vs. Ramsingh & Sons) decided on 27-3-70 in which, although declining to interfere with the Dy. Commissioner's order setting aside the penalty imposed by the assessing authority, an observation was made that if the assessing authority wished he could have served due notices and passed fresh order. Learned counsel for the dealer said that the judgment cited by the departmental representative was passed ex-parte in an uncontested case as no one had appeared on behalf of the dealer, and there were no arguments on the point. Moreover, the decision was not to interfere with the appellate order setting aside the penalty and there was also no direction in the revision order to the assessing authority to proceed to impose penalty afresh. There was only an observation that the assessing authority could have taken action after proper notice afresh. Whether such action could have been sustainable, if it had been taken, in the circumstances of the case, is problematical. He also invited attention to Section 13 (4) of the RST and said that every order passed in appeal is final, subject only to revision by the Board or a reference to the High Court. In the absence of any revision etc , the earlier order of the Dy. Commissioner setting aside the penalty of Rs. 1600 was final, and the assessing authority had no authority to set this order at naught, by re-imposing penalty. He pointed also to the fact that by the fresh order the penalty had been nearly doubled. I have considered the matter. In the circumstances indicated in para 5, and particularly in view of the fact that the decision in that case was one declining to interfere with the appellate order setting aside the penalty and there was also no remand direction for future action to reimpose penalty, I agree with the learned counsel for the dealer that the observation in Sales Tax Revision No. 481/ 1967/jaipur could not be an authority for any general proposition that even where a composite penalty has been set aside by the appellate authority without any remand or direction for fresh action to impose penalty, and the appellate order has become final in the absence of revision etc. the assessing authority may still take fresh proceedings to reimpose penalty for one or more of the same offences. In this case, clearly there was no remand or direction by the appellate authority for fresh proceeding for penalty. In the absence of any revision, the order would be deemed to be final. There is also the additional circumstance, in this case, that while the composite penalty in the original order for two offences under Section 16 (1) (b) and (c) was Rs. 1600 only, in the fresh penalty order the penalty imposed for only one of these offence, namely under Section 16{l) (c), was put at Rs. 3000/- nearly double the previous amount. The order can not but be termed preverse. I, therefore, do not see adequate ground to interfere with the Dy. Commissioner's order. Argument was also advanced before me by the counsel for the dealer that the case related to 1961-62 during which the 'b' Circle, Jaipur, has been held not validly constituted, and in the absence of a proper authority to whom returns could have been submitted, the offence of failure to furnish returns in time without reasonable cause" could not be deemed to have been established and the penalty could not have been at all imposed. In view, however, of my conclusion in the above para, it is not necessary for me to go into this question. The revision application is rejected. .;