- (1.) THE first revision petition has been filed under Sec. 86 of the Rajasthan Sales Tax Act, 1994 against the judgment and order of the Rajasthan Tax Board (for short, "the Board') dated 1.11.2000 (Annx.7), by which the Board has reversed the judgment and order of the Appellate Authority dated 18.11.96 (Annex.6) and upheld the order dated 23.9.95 (Annex.5) passed by the Assessing Authority, by which the penalty and been imposed under Sec. 22-A (7) of the Rajasthan Sales Tax Act, 1954 (for short, "the Act") for carrying the goods without the prescribed declaration Form ST 18-A as required under the Statute. THE second revision petition (No. 937/2001) has been filed against the judgment and order dated 18.1.2001 (Annex.7) passed by the Board reversing the judgment and order of the Appellate Authority dated 24.8.96 (Annex.6) and upholding the order dated 20.9.94 (Annex.5) passed by the Assessing Authority imposing the penalty for carrying the goods with not correct particulars in the Bill.
(2.) MR. Dinesh Mehta, learned counsel for the petitioner, has submitted that in both the cases, the facts are similar and only a pure question of law is involved and Revision Petition No. 343/2001 may be taken as a leading case for decision of both the cases. The facts and circumstances giving rise to the said revision are that petitioner firm is a registered dealer under the Act, 1954 as well as under the Central Sales Tax Act and it carries the business in chemicals, such as Vax, Bronze, powder etc. On 3.8.95, vehicle No. RJ. 3T/3951 was intercepted near Jodhpur by the Sales Tax Authorities and on checking, it was found that M/s. Mayur Dyes Chemical Corporation, Rajkot (Gujarat) had sent goods for sale to the petitioner firm vide Bilty No. 27423 through M/s. Globe Transport Co. (P) Ltd. The said goods were not accompanied by declaration From ST. 18-A as required under the Act, 1994. The goods were seized and a show cause notice (annex.2) was served upon the petitioner firm to appear on 19.3.95 and show cause why penalty under Sec. 22-A(7) of the Act may not be imposed as the goods in question were not accompanied by Declaration From ST. 18-A. In response to the said show cause notice, a representative of petitioner firm appeared before the Authority and vide his statement dated 4.9.95 (Annex.3), admitted that the goods were not accompanied with the required Declaration From ST. 18-A. The Assessing Authority, after giving opportunity of hearing to petitioner firm, vide order dated 23.9.95 (Annex.5), imposed the penalty to the tune of 30% of the value of the goods amounting to Rs. 47,700/- under the provisions of Sec. 22-A (7) of the Act, 1954. Being aggrieved and dissatisfied, petitioner firm filed an appeal before the Deputy Commissioner (Appeals), Commercial Taxes, Jodhpur, which was allowed vide order dated 18.11.96 (Annex.6) on the ground that there was no guilty animus or intention to avoid tax on the part of the petitioner though, undoubtedly, the goods were not accompanied by the Declaration Form ST. 18-A. Being aggrieved and dissatisfied, the Revenue preferred an appeal before the Board, which has been allowed vide judgment and order dated 1.11.2000 (Annex.7) on the grounds that firstly mens rea was not attracted in the fact-situation of the case and secondly the plea taken by the petitioner-assessee that he had sent the required declaration Form ST. 18-A to the consignor firm in Gujarat and by confusion it could not be given to the transporter was false. Hence this revision. There is no dispute to the settled legal proposition that the revisional power conferred under Section 86 of the Act upon this Court can be exercised only when the case involves a question of law, which means a case involving the construction of a Statute or document of title. A finding on a question of fact may also be open to attack as erroneous in law when there is no evidence to support it or it is perverse. Revisional power cannot be used as of Appellate Court and there is no scope of substituting the judgment of the Court below by its own judgment on appreciation of evidence. (Vide Shree Meenakshi Mills Ltd. vs. Income tax Commissioner (1); Bhagirathi Agrawal & Bros. vs. State of Orissa (2); and A.C.T.O. vs. Ramesh Leather Store & Ors. (3). Mr. Mehta has submitted that the case involves the following questions of law to be decided by this Court:- "(1) Whether the admission on the part of the representative of petitioner firm to the extent of the fact that the goods were not accompanied with the Declaration From St. 18- A, would be sufficient to prove the existence of mens rea to avoid tax; and (2) Whether petitioner firm can be held liable for the negligence or irregularity committed by the transporter in not bringing the requisite Declaration From ST. 18-A? Mr. Mehta has been fair enough in admitting that the goods were definitely not accompanied by the required Declaration Form ST.18-A though it was accompanied with the Bilty showing that the goods were "tax free" and he could not agitate the issue in revisional jurisdiction as to whether the finding of fact recorded by the learned Board that the plea taken by the petitioner- Assessee regarding sending the required declaration Form ST.18-A in Gujarat and was not given to the transporter was false being a finding of fact. Thus, his submission remains limited only to the extent as to whether penalty can be imposed without recording the finding of fact that the petitioner intended to avoid tax as mens rea was suggested to be an essential ingredient for imposing the penalty. As there is no dispute that the goods were accompanied with a Bilty showing the same as "tax free" and declaration form ST. 18-A was not there, and petitioner was bound by the statement made by its representative, the Court is left only to decide: whether for imposing penalty under Section 22-A (7), mensrea was an essential ingredient and as to whether mens rea was established on the part of the assessee.
(3.) MR. Mehta has submitted that the penalty, being penal in nature, cannot be imposed unless means rea is established and be imposed unless mens rea is established and by adducing sufficient evidence it is proved by the Revenue that there was an intent on the part of the assessee to evade tax and as the assessee had sent the required declaration Form ST 10-A to the consignor, such an intention could not be established. On the contrary, Mr. Manoj bhandari, learned counsel for the Revenue, has submitted that as the learned Tribunal has recorded the finding of fact in respect of not sending the required Form St. 18-A to the consignor firm in Gujarat, there was not option left to the Assessing Authority except to impose the penalty and in such a case, means rea was not attracted for the reason that the Declaration Form ST. 18-A was a mandatory requirement under the Act and was to be produced before the Assessing Authority in original. As the Board has clearly recorded the finding that there was no evidence on record to show that the transport company had written the number on the Bilty on the basis of the Declaration Form submitted to it by the consignor and no explanation could be furnished by the assessee as to why the number of the Form ST.18-A was written after preparation of the bilty, by whom the same was written and why the same had been deleted and scraped. Even if the Form could not be given to the transporter to keep it with the vehicle, it could have been brought at to subsequent stage but no such attempt was made. Imposition of penalty was justified as petitioner was found guilty of committing breach of a mandatory provision contained under Sec. 22-A (3) of the Act, 1954. I have considered the rival submissions made by the learned counsel for the parties and perused the record of the case. ;