Jainendra Kumar Ranka, J. - (1.) THIS revision petition has been filed by the petitioner -Department, under section 86 of the Rajasthan Sales Tax Act, 1994 (in short, "the Act") against the order dated July 5, 2007 passed by the Rajasthan Tax Board, Ajmer (in short, "The Board") in Appeal No. 1630 of 2006, which upheld the order dated May 21, 2005 passed by the learned Deputy Commissioner (Appeals), Bharatpur, (in short, "the DC (A)"), who had deleted the levy of penalty of Rs. 66,215 imposed by the learned Assistant Commercial Taxes Officer (in short, "the ACTO"), under section 78(5) of the said Act. The brief facts leading to this case are that on July 3, 2005 the goods, i.e., iron rods were being transmitted by a vehicle bearing No. RJ -02G -2468 from Bhiwadi to New Delhi. On checking made by the ACTO, Anti Evasion, of the Department, it was noticed that the driver of the vehicle was having Bilty No. 229 dated July 2, 2005, Invoice No. 1321 dated July 2, 2005 but declaration form No. ST -18C was not available with the driver, the declaration form No. 0948588 was produced later on however, in the said declaration form there was minor cutting in column No. 10 in the vehicle number except this, the form was found to be correct in all respect. However, the ACTO was not satisfied and imposed penalty to the extent of 30 per cent of the value of goods amounting to Rs. 66,215.
(2.) DISSATISFIED with the order of penalty, imposed by the ACTO the respondent preferred an appeal before the learned DC (A), who after going through the material on record, deleted the penalty levied by the ACTO vide order dated December 21, 2005 as the goods were under stock transfer and that there was no evasion of tax and when there was no evasion of tax question of penalty does not arise and he also stated that form No. ST -18C was produced thereafter, immediately on demand and following the judgment of the apex court rendered in the case of State of Rajasthan v. D.P. Metals : [2001] 124 STC 611 (SC) held that no penalty could be leviable, it was further held that stock transfer does not attract any tax, therefore, when there is no tax no penalty is leviable and accordingly, the penalty was deleted. Being dissatisfied with the order of the DC (A), the petitioner -Department preferred an appeal before the Tax Board, Ajmer, who after going through the material on record upheld the order passed by the DC (A) vide its order dated July 5, 2007 holding that no penalty could be leviable as the form No. ST -18C was made available immediately on demand, therefore, the judgment of State of Rajasthan v. D.P. Metals : [2001] 124 STC 611 (SC), is squarely applicable to the facts of the present case and the instant case is covered by the said judgment of the apex court. Being dissatisfied with the order of the Tax Board, Ajmer, the petitioner -Department has preferred instant revision petition and the following questions of law were admitted for hearing on May 13, 2008: "(i) Whether the impugned order of learned Tax Board ignoring the material, evidence on record and considering the material which is not part of the record, vitiates the order under law? (ii) Whether in the facts and circumstances of the case and on proper interpretation of the provisions of the section 78(5) of the Act, the in -charge of the check -post or the officer empowered has conditional/restricted authority to exercise powers while imposing penalty equal to 30 per cent of the value of such goods? (iii) Whether the production of ST18 -C is a matter of choice and convenience for the dealer and whether the provisions under rule 54 of the Rules of 1995 are mandatory or directory? (iv) Whether the appellate authority and the learned Tax Board can circumvent the provisions of law by drawing their own interpretation and conclusion which in fact were never intended by the Legislature? (v) Whether the appellate authorities can interfere in the order passed by the assessing authority to the extent that the penalty imposed is excessive and in matters of non -production of ST -18C lenient view should be taken, whether such view is sustainable or is contrary to the mandatory provisions of section 78(5) which provides for 30 per cent of penalty on valuation of goods -
(3.) IT is argued by the learned counsel for the petitioner -Department Ms. Tanvi Sahay, that at the time of checking of the goods though all relevant papers were available but form No. 18 -C was not readily available and it was produced later on and there was some cutting in column 10 with regard to vehicle number. She further argued that the form No. ST -18C is mandatory to be carried and produced at the time of checking and on demand by the ACTO. Since, the form No. ST -18 -C was not available and it was produced later on and even the said declaration form had cuttings therefore, the ACTO was quite justified in levying the penalty and the penalty was rightly imposed and it should be sustained.;