- (1.) Heard the counsel for the petitioner-firm and the respondent-Department. The following questions of law are made out in this revision petition: (1) Whether ex-parte decision of the appeal in the facts and circumstances of the case could not be countenanced for want of service of summons on assessee and appeal needs to be restored to the file of the Tax Board for decision afresh affording opportunity of hearing to the appellant to secure the ends of justice ? (2) Whether the penalty u/s. 76(6) of the Raj. VAT Act 2003 for the violation of Clause (b) of sub-section (2) of Section 76 imposed on 21.08.2006 is without authority of law in view of the fact that Clause (b) of sub-section (2) of Section 76 has been substituted vide Raj. VAT (Amendment) Act, 2007 w.e.f. 27.12.2006 ? (3) Whether the Tax Board is correct in law in sustaining the penalty u/s. 76(6) of the Act of 2003 irrespective of the fact that the AO has failed to prove false and forged documents and declaration establishing mens rea on the part of the assessee more so where the tax has been paid on the points of successive sales of the imported goods ? (4) Whether the Tax Board justified in sustaining the penalty over and above 30% of the value of the goods as prescribed in Section 76(6) of the Act of 2003 ?
(2.) The case of the petitioner-firm is that even though the Deputy Commissioner (Appeals), Commercial Tax Department, Bharatpur vide order dated 23.01.2007 had set aside the imposition of penalty on the petitioner-firm under Section 76(6) of the Rajasthan Value Added Tax Act, 2003 (hereinafter 'RVAT Act, 2003'), the learned Tax Board vide its order dated 24.08.2009 has upset ex-parte the said finding and revived the order of penalty visited upon the petitioner-firm by the assessing authority under the order dated 21.08.2006. Counsel for the petitioner-firm has submitted that in the proceedings before the Tax Board, the petitioner-firm was not served and therefore not represented. It is submitted that the issue with regard to levy of penalty on the petitioner-firm is founded upon a purported misdeclaration/misstatement in the documents accompanying the goods while they were in-transit from Madhya Pradesh to Rajasthan on 19.08.2006 and the case of the respondent-Department is that Sulphur sugar is sugar simpliciter and not the same Khandsari sugar. Counsel has submitted that this view of the respondent-Department is wholly without foundation inasmuch as other than sugar manufactured by the vacuum process other kind of sugar otherwise partake the character of Khandsari sugar and consequently, there was no declaration in the documents accompanying the goods in transit as alleged by the Department. It is submitted that in the event the petitioner-firm had the opportunity of appearing before the Tax Board in the revenue's appeal against the appellate order dated 23.01.2007 exculpatory of any wrong doing or illegality by the assessee, the correct legal and factual position would have been brought to the notice of the Tax Board. It is further submitted that subsequent to the receipt of goods in issue tax thereon has been paid on their further sale in the state of Rajasthan. It was finally submitted that even otherwise, the order dated 24.08.2009, passed by the Tax Board is an excess of Board jurisdiction inasmuch as the Board has taken into consideration extraneous matters not relevant to penalty proceedings under Section 76(6) of RVAT Act, 2003 while setting aside the order dated 23.01.2007, passed by the Deputy Commissioner.
(3.) A reply to the revision petition has been filed. Perusal of para 5 of the reply to the revision petition indicates that the averments in the revision petition with regard to the order dated 24.08.2009 being passed by the Tax Board without due service have not been denied.;