Vineet Kothari, J. - (1.) IN this revision petition, the challenge has been made to the penalty under Section 78(5) of RST Act, 1994 read with Sections 31 and 45 of the Rajasthan Tax on Luxury (Tobacco and its products) Act, 1994 was imposed on the Petitioner -Assessee/transporter, found to be carrying "Gutkha", a tobacco product, covered by the provisions of aforesaid Luxury Tax Act.
(2.) LEARNED Counsel for the Petitioner -Assessee as well as learned Counsel for the Revenue fairly submitted that said Rajasthan Tax on Luxury (Tobacco and its Products) Act, 1994 has been struck down by the Apex Court in the case of Godfrey Phillips India Ltd. and Anr. v. State of U.P. and Ors., reported in : (2005) 2 SCC 515 as being violative of Entry No. 62 of List II of 7th Schedule to the Constitution of India and, therefore, no such penalty with the aid of Section 78(5) of the RST Act under the said luxury tax could be imposed on the Petitioner -Assessee. They relied upon on Division Bench judgment of this Court in the case of M/s Dinesh Tobacco Industries and Ors. v. State reported in 2005 Tax Up -Date 347. In view of aforesaid judgments of the Apex Court and Division Bench of this Court, the impugned order of the Tax Board dated 23.03.2006 and orders passed by the lower authorities below cannot be sustained and the present revision petition filed by the Assessee deserves to be allowed.
(3.) CONSEQUENTLY , this revision petition is allowed and the impugned order dated 23.03.2006 passed by learned Tax Board in Appeal No. 53/2004/Jaipur and order dated 06.07.2004 passed by Tax Board in Appeal No. 1362/2002/Jaipur and order dated 12.08.2002 passed by Dy. Commissioner (Appeals) I, Commercial Taxes, Jaipur in Appeal No. 576/RST/2001 -02 and order dated 01.12.2001 passed by Assistant Commercial Tax Officer, FS -VI, Rajasthan, Jaipur are set aside.;