J.K. Ranka, J. - (1.) THIS revision petition under section 86 of the Rajasthan Sales Tax Act, 1994 (hereinafter referred to as "the Act") has been filed by the petitioner -Department assailing the order of the Rajasthan Tax Board, Ajmer, (in short, "the Board") dated July 11, 2007 in Appeal No. 2542 of 2005 wherein, the Tax Board affirmed the order passed by the Deputy Commissioner (Appeals), Commercial Taxes, Bharatpur, dated November 29, 2004, who had deleted the penalty under section 78(5) of the Rajasthan Sales Tax Act, 1994 (for short, "the Act of 1994") amounting to Rs. 39,895. The revision petition was admitted on March 19, 2008 on the following substantial questions of law: "(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 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 S. T. 18 -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 conclusions 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 incomplete/unfilled form S. T. -18C can be ignored by the assessing authority so as to take a lenient view against the intention of the Legislature and 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 -
(2.) THE facts of the case are not in dispute as the goods were being carried by the respondent -assessee and was intercepted by the authorised officer of the Department. The relevant documents were produced and so far as the fact with regard to declaration form ST -18C is concerned, all the columns of the form were filled in however, in the column of invoice number and the date was not filled in and left blank on account of inadvertence. When the assessing officer, found the columns blank, he was not satisfied as according to him, the declaration form should be properly filled in, as it was mandatory on the part of the respondent -assessee to fill in all the columns when the goods were carried. Therefore, as per the A. O. there was violation of provision of rule 54 of the Rules, and accordingly, he imposed the penalty holding that there was intention of tax evasion by the respondent -assessee. On appeal, by the respondent -assessee, the learned DC(A) deleted the penalty imposed by the learned assessing officer by accepting the appeal of the respondent -assessee.
(3.) BEING dissatisfied with the order passed by the learned DC(A), the matter was further carried in appeal, by the petitioner -Department before the Tax Board, who after going through the material on record, confirmed the order passed by the DC(A) and rejected the appeal of the petitioner -Department, by holding that all the relevant documents were produced and only one column of the declaration form No. ST -18C was found to be blank, therefore, it could be on account of inadvertence and in such circumstances, it cannot be said that there was intention of tax evasion by the respondent -assessee.;