Vineet Kothari, J. - (1.) THE learned Counsel for the Petitioner submitted that the controversy in the present case is squarely covered by the recent decision of this Court in the case of CTO v. M/s Jain Tubes SBSTR No. 291/2008 decided by the Jaipur Bench of this Court on 1.4.2011 in which this Court referring to the provisions of Section 78 (5) of the Act and Rule 55 and circular dtd.1.4.2002 issued by the Commissioner of Commercial Taxes held as under: 13. While the appellate authorities allowed the appeals of the Assessee (s) on the ground of absence of mens rea or the amendment w.e.f. 22.3.2002 in Section 78(5) of the Act and holding that such penalty could not be imposed on the owner of the goods, are not sustainable ground any more in view of the later decisions of the Apex Court in the case of Guljag Industries and Bajaj Electricals (supra) but nonetheless the fact remains that before this Court against two rounds of success of the Assessee (s) before appellate forums below, Revenue is in revision petition before this Court. Therefore, the law with regard to Section 78(5) of the Act cannot be said to be clearly spelt out during the period in which these appellate authorities passed their orders in favour of Assessee (s). While these issues have been now decided by the Hon'ble Supreme Court in favour of Revenue, however, the fact remains that principles of natural justice are yet to be complied with and that is not excluded by the Apex Court in any of these judgments; and on the other hand, the Apex Court has left it open for the Assessing Authority to make such compliance with the principles of natural justice even now. 14. Therefore, this Court is of the opinion that the Assessee (s) deserve a fresh opportunity of hearing and specific show cause notice with the nature of defect(s) and deficiencies in compliance with the provisions of Section 78(2) of the Act and it is only thereafter that the penalty proceedings deserve to be decided afresh by the Assessing Authority dealing with all the contentions of the Assessee and depending upon the compliance made by them in such compliance with the principles of natural justice. 15. Consequently, these revision petitions of the Revenue are partly allowed and all the orders passed by the three authorities below, namely, by the Tax Board, Deputy Commissioner (Appeals) as well as Assessing Authority are set aside and the matter is restored back to the Assessing Authority for deciding the penalty proceedings de -novo. Since considerable time has already passed, therefore, it is expected that the Assessing Authority will pass such fresh orders after giving opportunity of hearing to the Assessee (s) as aforesaid, within a period of six months from today. No costs. Sd/ -(Dr. Vineet Kothari), J.
(2.) SINCE admittedly, no opportunity was given in the present case to fill up the incomplete particulars in declaration form ST 18A besides all the relevant documents found at the time of checking of goods in movement, the matter deserves to be remanded back. Accordingly, this revision petition is allowed for statistical purposes and setting aside the order of the Tax Board dtd.21.10.2003 in appeal No. 199/2003/Dungarpur and also the orders of the lower authorities, the matter is remanded back to the Assessing Authority for decision afresh in light of the aforesaid decision of this Court.;