V. K. SINGHAL, J. - (1.) THESE two revisions have been preferred by the assessing authority raising the following two questions of law arising out of the Tribunal's order : (i) Whether, in the facts and circumstances of the case, the timber card board sheets and wire nails could be termed as raw material ? (ii) Whether, in the facts and circumstances of the case, the Tribunal was right in setting aside the penalty without holding that there was a sale within the State or sale in the course of inter-State trade or commerce and no sale was effected outside the State ?
(2.) BRIEF facts of the case are that the assessee is manufacturer of bearings, steel balls, axle boxes and packing materials. The packing material is manufactured from various items, which are entered in the certificate of registration. While framing the assessment order for the year 1971-72, penalty of Rs. 43,480 was levied under section 5c (2) of the Rajasthan Sales Tax Act, 1954, on the ground that the assessee has not produced manufacturing stock register showing the opening and closing stock of the packing material and card board sheets, wire nails, wood and timber were purchased against form ST 17 under section 5c showing the same as raw material for the manufacturing of packing material, but the assessee had not produced any accounts showing the sale of packing material within the State or in the course of inter-State trade and commerce. Similarly for the assessment year 1972-73, penalty of Rs. 31,437 was levied for the same reason. In the appeals preferred to the Deputy Commissioner (Appeals), it was submitted that the order dated 17th May, 1971 deleting entries of card board sheets, wood timber and wire nails from the registration certificate of the petitioner have been set aside on 31st March, 1975, in revision and it was submitted that the matter has not yet finally been decided as the final orders have not been passed by the High Court. The Deputy Commissioner (Appeals) observed that the Commercial Taxes Officer, may pass the final order in this respect after the matter is finally decided by the High Court. Regarding levy of penalty for purchase of welding rods, zinc, dust shields, oil and grease, steel strips, etc. , the matter was remanded to the Commercial Taxes Officer, who examined the matter and passed fresh order after hearing the appellant. The order in appeal was challenged before the Rajasthan Sales Tax Tribunal and the Tribunal has observed that the penalty cannot be levied so long as it items are entered in the registration certificate. It was further observed that with regard to levy of penalty under section 5c (2) the matter was remanded and it was informed that the assessing authority thereafter has levied fresh penalties, against which appeals were preferred and the limited point to be examined by the Tribunal was as to whether the order of remand was justified or not and the Sales Tax Tribunal came to the conclusion that the order of remand is justified. Arguments of both the learned counsel have been heard. If the item is specified in the certificate of registration, then so long as the entry is not deleted, it cannot be said that the purchases have been made of an item for which the assessee is not entitled to purchase under section 5c. In this case, though the entry was deleted, but by a subsequent order of the revising authority, the orders deleting the entries have been set aside and, therefore, it would be considered as if the entries exit in the certificate of registration. The Sales Tax Tribunal has already observed that the matter is pending before the Rajasthan High Court and if any contrary view is taken then the assessing authority would be free to take action in accordance with law. But so long as the position remains that the entries are existing in the certificate of registration, the penalty under section 5c (2) cannot be levied on the ground that the assessee is not entitled to purchase the items as raw material. Regarding the matter for purchase of other raw materials, on which it was to be considered as to whether an offence has been committed or not on the basis of prudent man theory, the matter was already remanded and in respect of the remand proceedings it has been observed by the Sales Tax Tribunal that the penalty was again levied. The final outcome would depend on the decision, which may be given in respect of the orders passed subsequently giving effect to the remand order. The order of the appellate authority, namely, the Deputy Commissioner (Appeals) remanding the case has been upheld by the Sales Tax Tribunal; it is justified and I do not feel that there is any justification in interfering with the order of the Tribunal. Consequently, the revisions have no force and are hereby dismissed. Petitions dismissed. .;