Vineet Kothari, J. - (1.) THE assessee has filed the present revision petition under section 84 of the Rajasthan VAT Act, 2003 against the order of the Rajasthan Tax Board, Ajmer, allowing the Revenue's Appeal No. 1340/2009/Ajmer - -ACTO v. Hiramani Food Products, whereby setting aside the order of the learned Deputy Commissioner (Appeals), the learned Tax Board restored the penalty of Rs. 2,41,140 imposed by the Assessing Authority on the petitioner -assessee under section 76(6) of the Rajasthan VAT Act, 2003. The facts in nutshell are like this. On March 5, 2009, the goods, viz., dry turmeric (haldi) being transported in Truck No. RJ27/GA -4451 was checked on National Highway No. 8 at Khajuri (Dungarpur) by the ACTO (Flying Squad), Banswara and he found, inter alia, that the driver of vehicle while producing the relevant bills and bilty of the goods being transported did not produce the prescribed form No. VAT 47, which was, inter alia, required to be produced along with other relevant documents, viz., bill and bilty as per section 76(2) of the said Act. A notice was issued to the assessee on March 5, 2009 itself and on March 6, 2009, Mr. Punit Kumar, partner of petitioner -assessee filing reply to the said notice of the Assessing Authority, inter alia, also produced the declaration in form VAT 47 No. 378019, inter alia, contending in the reply that no penalty under section 76(6) of the Act deserves to be imposed, since relevant documents in the form of bills and bilty accompanied the said goods and defect of not furnishing VAT -47 was also removed by furnishing of the same on the very same day as soon as notice was given to the assessee. The Assessing Authority however imposed penalty at 30 per cent of the value of goods carried at Rs. 2,41,140 upon the assessee.
(2.) THE first appeal filed by the assessee came to be allowed by the learned Deputy Commissioner (Appeals) vide order dated May 19, 2009, following the decision of the honourable Supreme Court in the case of State of Rajasthan v. D.P. Metals reported in : [2001] 124 STC 611 (SC). However the appeal of the Revenue against that came to be allowed by the learned Single Member of the Tax Board by the impugned order dated November 2, 2010 and the Board restored the said penalty, inter alia, discussing the Departmental circulars dated August 30, 2008 and February 27, 2009 which are being reproduced hereunder: The learned Tax Board held the Deputy Commissioner (Appeals) has erred in setting aside the penalty since technically, the requirement of furnishing of declaration form VAT 47 was not complied with and in view of the decision of the honourable Supreme Court in the case of Guljag Industries v. Commercial Taxes Officer reported in : [2007] 9 VST 1 (SC) : [2007] : 293 ITR 584 (SC) : [2007] 18 Tax Update 321 such penalty was imposable. Being aggrieved by the same, the assessee has filed the present revision petition before this court.
(3.) MR . Alkesh Sharma, learned counsel for the petitioner -assessee, vehemently submitted that the learned Tax Board has fallen into error in following the decision of the honourable Supreme Court in the case of Guljag Industries : [2007] 9 VST 1 (SC) : [2007] 293 ITR 584 (SC) : [2007] 18 Tax Update 321, whereas the honourable Supreme Court in the said decision in para 26 had made it clear that the said judgment was confined the cases where blank/incomplete form No. 18 -A and 18 -C had accompanied the goods in movement and not to the cases where no such form accompanied the goods at all. He submitted that on the contrary, the honourable Supreme Court in the case of D.P. Metals : [2001] 124 STC 611 (SC), which was rightly followed by the learned Deputy Commissioner (Appeals), has clearly allowed an opportunity of hearing to be given to the assessee, where such declaration form did not accompany the goods in transit and if such declaration form is furnished upon such notice being given, unless assessing authority arrived at a finding upon an enquiry that such documents already produced or declaration forms later on produced upon giving of such show -cause notice, are found to be false or forged by the assessing authority, no such penalty under section 78(5) of the old Act, 1994 which is equivalent to section 76(6) of the new VAT Act of 2003 could be imposed on the assessee. He also relied upon the latest decisions of different coordinate benches of this court in almost similar circumstances and submitted that this court has consistently upheld the proposition of law that where such declaration is furnished soon upon giving of show -cause notice to the assessee and while relevant documents like bills and bilties are already accompanying the goods in transit and declaration form in ST -18A or VAT 47 and VAT 49 are furnished by the assessee, the penalty under section 76(6) cannot be imposed. He relied upon the two decisions of this court in the case of Assistant Commercial Taxes Officer v. Tata Iron & Steel Company Ltd. reported in : [2013] 62 VST 464 (Raj.) : [2013] 35 Tax Update 249 and Cera Tech India v. Assistant Commercial Taxes Officer reported in, [2013] 1 VST -OL 393 (Raj.) :, [2013] 35 Tax Update 49 in this regard.;