JAIN, J. - (1.) THIS sales tax revision u/s. 15 (2) of the Rajasthan Sales Tax Act, 1954 is directed against the judgment of the learned Sales Tax Tribunal, Ajmer dated 16. 3. 1990 passed in appeal no. 149/86.
(2.) BRIEF facts of the case are that the personnel of the Department on checking at Manpura Check Post near Parbatsar found 180 bags of 'raida' which were being carried on the truck No. RSQ 5941 on 29. 8. 83. The consignment was found without any document only on the basis of letter of the truck union. The goods were seized. The Assistant Commercial Taxes Officer, Anti Evasion, imposed penalty vide its order dt. 30. 8. 83 as there was breach of section 22a (3) read with Sec. 22a (7) of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as 'the Act' ). Being aggrieved, the assessee filed an appeal before the Dy. Commissioner (Appeal), Jodhpur. The Dy. Commissioner, Jodhpur being satisfied with the case of the assessee that the goods were sent to West Bengal and subsequently found that the assessee had previous dealing with the consignee and the issued bills were entered in the books of accounts and since no evasion has taken place, held that penalty u/s. 22a (7) of the Act cannot be levied and allowed the appeal vide order dt. 30. 8. 86. Dissatisfied with this order, the Department preferred an appeal before the learned Rajasthan Sales Tax Tribunal. The learned Tribunal vide its order dt. 16. 3. 1990 affirmed the order of Dy. Commissioner (Appeals ). Hence, the Department has preferred this revision raising following questions of law : - (i) Whether in the facts and circumstances of the case the Tribunal was justified in holding that actual evasion of tax is condition precedent for levying penalty under Section 22-A (7)? (ii) Whether subsequent issuance of documents and entries : in the books of accounts absolve the liability under section 22-A (7)? I have heard learned counsel for the parties and have perused the relevant record and relevant provisions. Undoubtedly, the owner or person in-charge of a vehicle, shall carry with him all relevant documents as provided in Section 22a (3) read with Rule 62a of the Rajasthan Sales Tax Rules (hereinafter referred to as the Rules) and as provided under Rule 63 (2) of the Rules, in case the person in-charge of the goods or the driver does not possess any document, the officer of the Department may seize the goods and after serving a notice on the owner or person-in-charge requiring him to furnish the documents mentioned within 15 days from the date of service of the notice to show genuineness of the documents. The idea is to check evasion of tax and to see that the consignee and consigner are not fictitious and goods are duly entered in the books of accounts. If after, investigation, the authorities comes to the conclusion that the goods are not duly recorded in the books of accounts and the bills and documents of the goods seized are prepared afterwards fraudulently just to evade tax, the penalty u/s. 22a (7) of the Act can be imposed. Each case depends on the facts of its own. As already stated that it is not in dispute that the assessee firm had previous dealing with the consignee and has collected goods at Merta and the goods were sold in inter-state sale at Bakuda, West Bengal for which a railway wagon was booked after depositing requisite fees through Badrilal Dalai and for the purpose the same was being sent in the truck to Badrilal Dalat at Ajmer on the 'pad' of truck union. The assessee has explained in his reply to the notice for 14. 9. 83 that the goods were entered on 29. 8. 83, along with the bills, the Dy. Commissioner (Appeals) and the Rajasthan Sales Tax Tribunal after considering the relevant material were satisfied that the goods were properly purchased and there was no mens-rea to evade tax on the basis of reply and explanation filed by the assessee on 29. 8. 83 and set aside the order of the assessing authority imposing penalty, as the assessee has produced documents showing that tax has been paid and bills of goods were duly entered in the books of accounts and the Department has not been able to show that the documents were prepared afterwards just to evade tax. Thus, when actual evasion of tax has not been established no penalty u/s. 22a (7) of the Act can be imposed ipso facto without mens-rea merely not having the documents at the time of checking when they were submitted in time subsequently under Rule 63 (3) of the Rules and were found to be genuine by the authorities below and if still the assessee is held liable then the purpose of Rule 63 (3) of the Rules will become nugatory. The same view has been taken by me in A. C. T. O. vs. Sudhir Industries (S. B. Sales Tax Revision ). The argument of Mr. Mehta that the case was decided on the same day i. e. 30. 8. 83, meaning thereby the assessee has admitted his guilt has no substance in view of the fact that the goods were seized on 29. 8. 83 at 5 a. m. and in view of the explanation that the goods were to be despatched by railway wagon next day for the destination from Ajmer to Bakuda, West Bengal and both the authorities below have not found that the assessee has guilty conduct and tried to evade tax and, therefore, it cannot be presumed that he has admitted his guilt. Further in revisional jurisdiction it is not proper to re-appreciate the evidence as the scope of revision is very limited. However, a perusal of the statements of Shantilal, Munim and Ghasiram, Driver show that they have stated that the goods belong to M/s. Dosi Deokaran Shri Chand and going to Bakuda but pleaded ignorance about the documents at that point of time. Mr. Mehta cannot derive any advantage out of these statements and no adverse inference can be drawn against the assessee in view of the above conclusion which is a finding of fact. Under the facts and circumstances of this case, the Dy. Commissioner (Appeals) and the learned Salex Tax Tribunal were justified in setting aside the penalty and in my view no question of law arises out of the impugned order.
(3.) IN the result, this revision is hereby dismissed. .;