Jainendra Kumar Ranka, J. - (1.) THIS revision petition has been filed by the petitioner department, under Section 84 of the Rajasthan Value Added Tax Act, 2003 (In short 'The Act') against the order dated 10.1.2011 passed by the Rajasthan Tax Board, Ajmer (in short 'The Board') in Appeal No. 833/2007, by which the appeal of the appellant had been rejected by upholding the order dated 30.8.2006 passed by the learned Deputy Commissioner (Appeals), Bharatpur, (in short 'The DC (A), who had deleted the levy of penalty of Rs. 66,067/ - imposed by the learned Assistant Commercial Taxes Officer, Alwar, (in short 'The ACTO'), under Section 78(5) of the said Act. The brief facts of the case as emerging on record is that the respondent had sent certain goods through a transport vehicle bearing No. RJ. 02G -6044 from Khushkheda to Haryana, containing therein iron rods. On checking conducted on 22.09.2004 by ACTO (AE) the driver of the vehicle was found with the invoice issued by the respondent bearing No. 1703 dated 22.09.2004, builty No. 1788 dated 22.09.2004, issued by Chouhan Transport Company, Machiheda, District, Alwar, ST -38 No. 3379152 the declaration form issued by Govt. of Haryana, However, with the aforesaid document/paper, Form No. ST -18C which was mandatory as per the Rajasthan Sales Tax Act and Rules, (in short 'The Rules') was not produced. Accordingly, the ACTO (AE), held that the respondent has contravened the provisions of Section 78(2)(a) of the Act read with Rule 54 of the Rules, the vehicle containing goods was detained. Notice was issued and served upon the driver of the vehicle on the spot. On the date of hearing, the Manager of the Transport Company, appeared and requested for release of the vehicle and it was pleaded that the driver of the vehicle was having required proper bills, builty, vouchers and declaration form No. ST -38 of the Government of Haryana as well as Form No. ST -18C. It was further pleaded that the driver of the vehicle was illiterate person and in haste Form No. ST -18C, fell down in the cabin of the vehicle as a result of which, the form could not be located at the time of checking on the spot. Before ACTO (AE), along with reply, Form No. ST -18C bearing No. 0757278 was produced and it was claimed that the said form was found in the cabin of the vehicle after thorough search made by them. Accordingly, he made a request for release of the vehicle and for non imposing of penalty however, learned ACTO (AE), though, admitted that the driver of the vehicle was having required documents with him on the spot, except Form No. 18 -C, dis -believed the story and rejected the request of the respondent. It was observed by the Assessing Officer that it is incumbent upon the assessee to carry the Form No. ST -18C which is mandatory while carrying the goods from one place to other place and since, most important document was not available with the driver of the vehicle, it was done with the intention of evasion of tax and held that the act of the respondent was with the intention of tax evasion and accordingly imposed penalty of Rs. 66,067/ - against the respondent under section 78(5)(a) of the Act, being 30% of the value of the goods which was claimed to be at Rs. 2,20,224/ -.
(2.) AGGRIEVED by the said order of imposition of penalty, the respondent preferred an appeal before the learned DC (A), Bharatpur and re -iterated the facts pleaded before the Assessing Officer. The documents which were produced before the ACTO (AE), were again produced before the DC (A) and contended that the driver of the vehicle was having all required documents, like builty, vouchers and even declaration form issued by the Government of Haryana except Form No. ST -18C which could not be produced on account of mistake of driver of the vehicle as the same fell down in the cabin of the vehicle in haste and only on account of this factum, the correct claim had been ignored by the Assessing Officer. The DC (A) after recording his finding of fact came to the conclusion that the driver of the vehicle was having all required documents except Form No. ST -18C and the declaration Form ST -38 issued by the Government of Haryana, was also part of the documents, in any case, immediately, on demand, Form No. ST -18C was submitted therefore, there is no justification for imposing the penalty as the tax had not been evaded by the respondent. Even otherwise, goods were not sold and was only transmitted from one State to another. The DC(A), being satisfied with the explanation given by the respondent, deleted the penalty. Aggrieved by the order passed by the learned DC(A), the ACTO (AE) preferred appeal before the Tax Board. The Board vide order dated 10.1.2011 after detailed discussions, accepted the facts narrated by the DC (A) in his order and came to the conclusion that when other required documents were available with the driver including the declaration Form No. ST38 issued by the Government of Haryana, and that Form ST18C was immediately, produced on demand, the Tax Board was satisfied that the DC (A) had rightly deleted the penalty imposed by the Assessing Officer and upheld the order passed by the DC (A). The Board also relied upon the Judgment rendered by the Hon'ble Apex Court in the Case of State of Rajasthan and Another Vs. D.P. Metals, : (2001) 124 STC 611 (SC).
(3.) BEING aggrieved by the order passed by the Board, the instant revision petition has been filed by the petitioner -department.;