Vineet Kothari, J. - (1.) HEARD learned Counsels.
(2.) THIS revision petition has been filed by the Revenue feeling aggrieved by the order dated 29.04.2002 passed by learned Tax Board in Appeal No. 1338/2000/Dungarpur, whereby, the appeal filed by the Revenue was dismissed and it was held that the penalty imposed under Section 78(5) of the Act of 1994 was not imposable in the absence of Form ST 18A at the time of checking of goods in transit, when all other documents were being carried and produced as required under Section 78(2) of the Act. This Court in ACTO v. M/s L.G. Electronics (SBSTR No. 198/2010) decided on 1.4.2011 after taking into account all the recent Supreme Court decisions in the case of State of Rajasthan and Anr. v. D.P. Metals : (2002) 1 SCC 279, Bajaj Electricals : (2009) 1 SCC 308 & Guljag Industries v. Commercial Taxes Officer : (2007) 7 SCC 269 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 (supra) 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 01.04.2002 (supra), 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 (supra) 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 -I8A 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 w.e.f. 22.03.2002 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 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.
(3.) ACCORDINGLY , present revision petition is allowed and the matter is remanded back to the learned Assessing Authority, 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 (supra), after giving an opportunity of hearing to the Assessee. 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. ;