N. N. MATHUR, J. - (1.) THIS special appeal by the State is directed against the order of the learned single Judge dated November 22, 2001. THIS order was modified by order dated March 18, 2002. Having perused both the orders we are satisfied that the special appeal deserves to be dismissed.
(2.) BRIEFLY stated the facts of the case are that the Assistant Commercial Taxes Officer, Anti-Evasion II. Rajasthan, Circle-I, Jaipur, intercepted the truck bearing No. RJ-19 G-2360 on September 25, 1999 and found that it was not carrying the requisite documents referred in sub-section (2) of section 78 of the Rajasthan Sales Tax Act, 1994. In view of this, notice under section 78 (5) of the Rajasthan Sales Tax Act, 1994 was given on October 26, 1999. On the same day, another notice was given under section 83 of the Rajasthan Sales Tax Act, 1994. The reply to show cause notice was given and the A. C. T. O. passed an order dated November 19, 1999 imposing penalty of Rs. 38,939 under the provision of section 78 (5) of the RST Act, 1994. The Assistant Commercial Taxes Officer assessed the value of the articles at the rate of Rs. 250 per kg. instead of Rs. 205. It appears that no order was passed with respect to the notice under section 83 of the RST Act, 1994. As far as, the levy of penalty under section 78 (5) of the RST Act, 1994 is concerned, it is not in dispute that respondent-writ petitioner has preferred appeal and the same is pending before the Deputy Commissioner (Appeals), Department of Commercial Taxes. M/s. Kedar Das Surendra Kumar filed a writ petition seeking direction against the respondent to make payment of goods seized and detained in accordance with the provisions of section 83 of the RST Act, 1994. A further prayer has been made to pay a compensatory cost of Rs. 10,000 for unnecessary harassment. In the reply, the department took the stand that as the petitioner has preferred appeal against the order under section 78 (5) of the RST Act, 1994 the proceedings under section 83 (2) of the RST Act, 1994 have not been proceeded further. A reading of the order dated November 22, 2001 shows that learned counsel appearing for the State agreed that department will proceed in accordance with law to make necessary arrangements for making payment of goods as provided under section 83 of the RST Act, 1994. It further appears that an application was filed by the appellant-department for clarification of the order on which the learned single Judge observed that as the goods belonging to the petitioner are sought to be purchased by the State Government, the question of payment is inherent in the incidence of purchase. The court asked the State Government to make payment to M/s. Kedar Das Surendra Kumar. It is contended by Mr. Johari, learned counsel appearing for the State, that proceedings under sections 83 and 78 (5) got merged in the final order dated November 19, 1999 passed by the Assistant Commercial Taxes Officer, Anti-evasion. Further, as the appeal has been filed under section 84 of the RST Act, 1994 before the Deputy Commissioner (Appeals), therefore, further proceedings under section 83 of the RST Act, 1994 were not pursued. It appears that the authorities have failed to make out purpose of two different proceedings, i. e. , one under section 78 (5) and another under section 83. The purpose of section 78 is to check the tendency of evasion of tax. It will be convenient to extract sub-sections (4) and (5) of section 78 as follows : " 78. Establishment of check-post and inspection of goods while in movement.- (1 ). . . . . . . . . . . (2 ). . . . . . . . . . . . . . . . . . (3 ). . . . . . . . . . . . . . . . . . (4) Where any goods in movement, other than exempted goods are without documents, or are not supported by documents as referred to in sub-section (2), or documents produced appear false or forged, the in-charge of the check-post or the officer empowered under sub-section (3), may - (a) direct the driver or the person in-charge of the vehicle or carrier or of the goods not to part with the goods in any manner including by re-transporting or re-booking, till a verification is done or an enquiry is made, which shall not take more than seven days; (b) seize the goods for reasons to be recorded in writing and shall give a receipt of the goods to the person from whose possession or control they are seized; (c) release the goods seized in clause (b) to the owner of the goods or to anybody else duly authorised by such owner, during the course of the proceeding if adequate security of the amount equal to the estimated value of the goods is furnished. (5) The in-charge of the check-post or the officer empowered under sub-section (3), after having given the person in-charge of the goods a reasonable opportunity of being heard and after having held such enquiry as he may deem fit, shall impose on him for possession or movement of goods, whether seized or not, in violation of the provisions of clause (a) of sub-section (2) or for submission of false or forged documents or declaration, a penalty equal to the amount of five times of the tax leviable on such goods or thirty per cent of the value of such goods, whichever is less. " The purpose of section 83 of the RST Act, 1994 is entirely different. The provision authorises the officer of department to purchase any goods in the prescribed manner from a dealer at the price equal to the value shown in his purchase bill or sale bill increased by ten per cent where such officer has reason to believe that the value shown in the sale or purchase bill is less than the fair market price of such goods. Sub-clause (2) makes it obligatory on the part of the dealer to sell the articles as soon as the notice under sub-section (1) is given. Thus, the sale under section 83 was complete and it was obligatory on the part of the Assistant Commercial Taxes Officer to make the payment of articles seized by him. The contention regarding the merger of proceedings under sections 78 (5) and 83 is misconceived. These are two separate proceedings and the question of merger does not arise. In view of this, the learned single Judge has rightly directed the department to pay the price of goods to the writ petitioner-dealer.
(3.) BEFORE parting, we may observe that the Assistant Commercial Taxes Officer was careless rather carefree in not giving due attention to the proceedings of section 83 of the RST Act, 1994 after having chosen to give notice under sub-clause (1) of section 83, RST Act, 1994 on account of which the dealer as well as the State has suffered. It will be open for the State to recover the amount to the tune which it has suffered from the Assistant Commercial Taxes Officer who has given the notice under section 83 (1) of the RST Act, 1994. We are surprised that while the department is at fault, it has chosen to prefer appeal against a just order. Consequently, the special appeal being devoid of merits is rejected. The appellant shall make the payment with interest of 6 per cent of the amount within a period of two months from today. Special appeal dismissed. .;