N. N. MATHUR, J. - (1.) WE have heard Mr. Vineet Kothari, learned counsel for the petitioner and Mr. Sangeet Lodha for the Department of Commercial Taxes. By way of this writ petition the petitioner has impugned the interim order dated August 16, 2001 passed by the appellate authority, namely, Deputy Commissioner (Appeals-II), Department of Commercial Taxes, Jaipur who by the said order dated August 16, 2001 pending appeal granted stay of recovery of the penalty amount provided he deposits the half of the penalty amount of Rs. 1,27,524 which comes to Rs. 62,524 and furnish security for the balance amount from two independent registered dealers.
(2.) THE say of the petitioner-company is that their truck bearing No. AS 01/s0086 carrying iron and steel on being checked was found without full particulars and form No. ST-18a. Thus, the department initiated proceedings for imposition of penalty under section 78 (5) of the Rajasthan Sales Tax Act, 1994 at the rate of 30 per cent of the value of goods. According to the petitioner-company it was a case of bona fide clerical error. It is also averred that there was no mens rea to avoid tax. However, the assessing authority rejected the submission and imposed a penalty of Rs. 1,27,524 upon the petitioner-company. THE petitioner preferred an appeal before the Deputy Commissioner (Appeals-II), Department of Commercial Taxes, Jaipur. Pending the appeal the impugned order has been passed by the said authority. It is contended by Mr. Vineet Kothari, learned counsel for the petitioner-company that imposition of penalty and the order of the appellate authority not staying the entire amount are not only illegal and without jurisdiction but in fact a contempt inasmuch as the provision of section 78 (5) of the Rajasthan Sales Tax Act has been struck down by the decision of this Court in D. P. Metal's case reported in [2001] 121 STC 311. Per contra, it is submitted by Mr. Sangeet Lodha, learned counsel for the department, that State has preferred special leave to appeal against the judgment of the division Bench in D. P. Metal's case [2001] 121 STC 311 (Raj) and the same is pending before the apex Court. The learned counsel has also produced a photocopy of the order of stay granted by the Supreme Court in the aforesaid case which reads as follows : " There shall be stay of levy of penalty under sub-section (5) except in a case falling under clause (a) of sub-section (2) of section 78 of the Rajasthan Sales Tax Act, 1994 pending further orders. Appeal to be heard on SLP paper book. Additional documents, if any, to be filed within three months. " At this stage, it would be convenient to read the relevant provisions of section 78 of the Rajasthan Sales Tax Act, 1994 : " 78. Establishment of check-post and inspection of goods while in movement.- (1 ). . . . . . . . . . . . . . . . . . . . . . . . . . (2) The driver or the person in-charge of a vehicle or carrier or of goods in movement shall, - (a) carry with him a goods vehicle record including 'challans' and 'bilties', bills of sale or despatch memos and prescribed declaration forms; (b) stop the vehicle or carrier at every check-post set up under sub-section (1); (c) produce all the documents including prescribed declaration forms relating to the goods before the in-charge of the check-post; (d) give all the information in his possession relating to the goods; and (e) allow the inspection of the goods by the in-charge of the check-post or any other person authorised by such in-charge. (3 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (4 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (5) The in-charge of the check-post or the officer empowered under sub-section (3), after having given the person in-charge 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 per cent of the value of such goods]. (6) to (12 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . ". A reading of the order of apex Court clearly shows that court while staying the levy of penalty under sub-section (5) of section 78 has carved out levy of penalty falling under clause (a) of sub-section (2) of section 78 of the Act. The clause (a) of sub-section (2) extracted above, clearly shows that driver of the vehicle is under obligation to carry with him the challan papers, bills, etc. , and prescribed declaration forms. In the instant case, the petitioner has been guilty of not carrying with him in the truck "the prescribed declaration form". Thus, there is substance in the contention of Mr. Lodha that in view of the interim order of the apex Court, the decision of this Court in D. P. Metal's case [2001] 121 STC 311 does not advance the case of the petitioner. It has been kept in abeyance so far as it pertains to clause (a) of sub-section (2) of section 78 particularly in the matter of not carrying the prescribed declaration form, i. e. , ST-18a with the truck.
(3.) THE learned counsel has raised various contentions touching the merits of the appeal. It is not necessary to return any finding or make observation with respect to the merits of this case else it may prejudice the appeal pending before the Deputy Commissioner (Appeals-II), Department of Commercial Taxes, Jaipur. Considering all the facts and circumstances of the case, the instant case is not found fit for admission. The writ petition is accordingly dismissed. Petition dismissed. .;