- (1.) By this revision petition, the petitioner assessee has challenged the impugned order of learned Tax Board dated 31/12/2007, whereby, the Tax Board has upheld the penalty of Rs.88,669/- imposed by the assessing authority under Section 77 (8) of the RST Act, 1994.
(2.) Learned counsel for the petitioner, Mr. Dinesh Mehta vehemently submitted that upon remand by the first appellate authority, learned CTO in the proceedings under Section 77 (8) of the Act in the impugned order dated 9/9/2002 found that excess stock of Rs. 3,23,364/- was found in the category of ST Paid goods on which tax cannot be levied on the present assessee, whereas, less stock was found on physical verification to the extent of Rs.2,77,649/- in the category of goods taxable @ 4%. He submitted that difference in the stock found by the assessing authority is upon deduction of normal G.P.Rate of 19.22 % from the total sale value of the goods found in the ST Paid category of goods at the business place of the petitioner assessee. He, therefore, urged that in the absence of actual physical stock being found in excess and that too in ST Paid goods category, penalty under Section 77 (8) of the Act could not have been imposed by the assessing authority and the learned Tax board has also fallen into error in upholding the same.
(3.) On the other hand, Mr. Ankur Mathur, learned counsel for the Revenue relying upon the provisions of Section 77 (8) of the Act, which are reproduced below, urged that the only basis for imposing penalty under Section 77 (8) of the Act is the possession of the goods not accounted for by the assessee irrespective of the category, whether ST paid goods or taxable goods, therefore, penalty provision gets attracted in the present case, since excess stock was found on the basis of deduction of normal G.P.Rate from the normal sale value, which is also a recognized method of determining the stock of the assessee. He submitted that the assessing authority cannot be faulted in imposing the said penalty. Section 77. Power of entry, inspection and seizure of accounts and goods:- (8) The assessing authority or the officer referred to in sub-section (5) may, after having given the dealer an opportunity of being heard and after having held such further inquiry as it may consider it, impose on him, for the possession of goods not accounted for, whether seized or not under sub-section (6), a penalty equal to the amount of the five times of the tax leviable on such goods or thirty percent of the value of such goods, whichever is less; and such authority or officer may release the goods, if seized, on payment of the penalty imposed or on furnishing such security for the payment thereof as it may consider necessary. ;