- (1.) Heard learned counsels. This revision petition has been filed by the assessee being aggrieved by the order of learned Tax Board dated September 10, 2002, whereby, the Revenue's Appeal No. 981 of 1999 (ACTO, Flying Squad I, Jodhpur v. Choudhary Govind Ram & Sons, Bilara) came to be allowed by the learned Tax Board on the ground that at the time of checking of the goods found in movement in truck No. GJ-7U-8228, the bill and bilty were not found along with the goods in transit and the defence taken by the respondent-assessee was that the bilty was not prepared to save the commission of Rs. 100 to be paid for preparing the bilty. However, the bill in respect of goods found at the time of checking was produced by the assessee.
(2.) This court in ACTO v. L.G. Electronics (SBSTR No. 198 of 2010) decided on April 1, 2011 after taking into account all the recent Supreme Court decisions in the case of State of Rajasthan v. D.P. Metals, 2001 124 STC 611, Assistant Commercial Taxes Officer v. Bajaj Electricals Ltd., 2008 17 VST 436 and Guljag Industries v. Commercial Taxes Officer, 2007 9 VST 1, has remanded similar cases to the assessing authority for giving an opportunity of hearing to the assessee in terms of decision of D.P. Metals, 2001 124 STC 611 once again and if the documents are produced by the assessee, the veracity of same may be verified by the assessing authority before restoring the penalty. The relevant portion is reproduced hereunder for ready reference : 12. There is no denial that principles of natural justice have to be complied with in the penalty proceedings under section 78(5) of the Act. Even section 78(5) itself provides for such opportunity of hearing to be given to the driver of the vehicle or the person in-charge of the goods. Rule 55 and circular dated April 1, 2002 , relied upon by the learned counsel for the assessee(s), also supports assessees' contention. In para 32 of the judgment of apex court in the case of D.P. Metals, 2001 124 STC 611, as well as later decisions have not ruled out or excluded the applicability of the principles of natural justice in such cases. It is true that a show-cause notice was given to the assessees at the time of penalty proceedings in these cases also, but it is equally true that penalty orders have not dealt with the contentions raised by the assessee(s) in great detail; and in large number of cases before this court as in the present cases one liners as the reasons are given in the impugned penalty orders that reply filed by the assessee(s) is not satisfactory. How and why the same is not found satisfactory is not explained. It is also not clear as to whether any specific opportunity was given to the assessee(s) at all to complete the incomplete declaration forms or produce the duly filled up declaration form in ST-18A for such compliance with the principles of natural justice. 13. While the appellate authorities allowed the appeals of the assessee(s) on the ground of absence of mens rea or the amendment with effect from March 22, 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 grounds any more in view of the later decisions of the apex court in the case of Guljag Industries, 2007 9 VST 1 and Bajaj Electricals, 2009 1 SCC 308 but nonetheless the fact remains that before this court against two rounds of success of the assessee(s) before appellate forums below, the 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 honourable Supreme Court in favour of the 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. Accordingly, for statistical purposes, this revision petition is disposed of and order passed by the learned Tax Board on September 10, 2002 is set aside. The matter is remanded back to the learned Deputy Commissioner (Administration), who will assign the matter to appropriate assessing authority in terms of this order, who in turn will proceed to decide the case afresh in the light of judgment of this court in the case of L.G. Electronics (SBSTR No. 198 of 2010) decided on April 1, 2011. 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 as aforesaid, within a period of six months from today. No costs.;