RAJESH BALIA, J. - (1.) THIS revision, under section 15 of the Rajasthan Sales Tax Act, is against the order dated May 30, 1991, passed by the Rajasthan Sales Tax Tribunal, in Appeal No. 6/89/st/jodhpur.
(2.) BRIEFLY stated, the facts giving rise to present revision are that - on August 18, 1988. Truck No. RNM 369 carried five aluminium coils, purchased by the petitioner from M/s. Prem Cables Pvt. Ltd. , Pipaliyan Kalan. The transporter carried the requisite documents as required under section 22a of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as "the Act"), only in respect of four coils and the fifth coil, weighing 2,912 kg. was not accompanied by any document. At the check-post, on finding one coil of aluminium unaccompanied by document, the Assistant Sales Tax Officer, Ward III, Circle C, Jodhpur, seized the coil and issued a notice to the petitioner to appear on September 3, 1988, and show cause against levy of penalty on the value of the coil, estimated to be Rs 81,000, weighing 2,912 kg. at the rate of 30 per cent maximum permissible levy of penalty under section 22a (7) of the Act. The petitioner moved an application that the aluminium coil is urgently required for the purpose of manufacture of conductors which are to be supplied to Punjab Electricity Board and delay in getting the coil might result in severe loss. He, therefore, offered to make payment of tax and whatever penalty that may be leviable on the spot. On such application, the Assistant Commercial Tax Officer (for short, hereinafter, "the A. C. T. O. ") levied the penalty at the maximum amount of Rs. 24,300 and released the goods on that very day. The petitioner, thereafter, preferred an appeal before the Deputy Commissioner, Commercial Taxes (Appeals), on August 30, 1988. Accompanied with appeal, he produced a covering letter from the seller of the goods, dated August 18, 1988 along with the gate pass, dated August 17, 1988, for removal of excisable goods and the delivery invoice dated August 18, 1988; and the transport receipt dated August 18, 1988, all of them pertaining to the goods in question. It was urged by the authorised representative of the petitioner that as is apparent from the communication of the seller dated August 18, 1988, the fifth coil was loaded in the truck at the nick of time and the papers relating to it were left behind by the transporter to be carried along with it. The petitioner was in no way at fault for the goods being carried without accompanying requisite documents. In the circumstances, the breach of law was mere technical breach and not intended to evade or avoid the payment of tax. Such venial or technical breach of law ought not to attract penalty. The Deputy Commissioner (Appeals) rejected the appeal, and affirmed the order passed by the ACTO. On further appeal, the Rajasthan Sales Tax Tribunal also affirmed the findings of the Deputy Commissioner (Appeals) but reduced the penalty from Rs. 24,300 to Rs. 18,000, by treating the offence as first offence of the petitioner. Learned counsel for the petitioner urged that the Deputy Commissioner (Appeals) and the Tribunal have based their decision merely on surmises and conjectures, without making any inquiry about the genuineness of the documents produced before the Deputy Commissioner of Appeals. Learned counsel contended that law is well-settled in the matter of penalty for breach of any statutory conditions, like the present one, the penalty ought not to be levied in the absence of finding as to contumacious or wilful default merely because it is lawful to do so. In the present case, there is no material to show any wilful or contumacious default on the part of the petitioner.
(3.) ON the other hand, learned counsel for the Revenue strenuously defended the levy of penalty by contending that it is admitted fact that one coil as aforesaid was being transported without requisite documents. Section 22a has been enacted to prevent evasion of tax and any breach of provisions of section 22a, must be viewed from the point of view as an attempt to evade the tax and be seriously dealt with. Breach of provisions of section 22a is admitted. No documents were produced before the assessing authorities by not availing the opportunity given to the petitioner. Both the appellate authority have affirmed the levy of penalty, though the Tribunal has reduced the quantum. In these circumstances, the counsel contends, that no question of law arises in the present case. Hence revision ought not to be entertained. He also contended the application of the petitioner for taking delivery of goods by offering to make payment of tax and penalty must be deemed to be an admission of guilt by the petitioner and surrendering to penalty by volition. He is, therefore, estopped from challenging the order. There cannot be any doubt that section 22a is on statute book, as a preventive measure to tax evasion and avoidance through fictitious or unaccounted transporting of goods. But it is equally true that provision are of ancillary nature, providing the manner and mode of transporting goods. The fact that on occasion, the goods are transported unaccompanied with documents, does not mean that in all such cases, penalty has to be levied, or if it is to be levied, maximum penalty has to be levied. It is to be noticed that provision casts an obligation only to the extent of carrying of requisite documents along with the goods by the carrier. If the required documents are accompanied, no breach is committed except in case documents are found to be fictitious or forged. If the goods are carried unaccompanied with the documents requisite, the breach of the condition for carrying goods is complete. Can it be said that in later case, levy of penalty is not only lawful but in all circumstances, obligatory ? If so, can it further be said that the assessing authority has uninhibited discretion to levy the maximum or near maximum penalty. In my opinion, the answer to both is in negative. It will be apposite to reproduce relevant extract of section 22a of the Act : " 22a. Establishment of check-post or barrier and inspection of goods while in transit.- . . . . . . . . . . . . . . . . . . . . (7) (a) The officer-in-charge of the check-post or barrier or any other officer not below the rank of an Assistant Commercial Taxes Officer, empowered in this behalf may, after giving the owner or person in-charge of the goods a reasonable opportunity of being heard and after holding such further enquiry as he may deem fit, impose on him for possession of goods not covered by goods vehicle record, and other documents prescribed under sub-section (3) or for submission of false declaration or documents a penalty not exceeding 30 per cent of the value of such goods, as may be determined by such officer : Provided that where the goods are being carried without proper documents as required by sub-section (3) or with any false declaration or statements and the owner or the incharge or the driver of the vehicle, boat or animal carrying such goods is found in collusion for such carrying goods, the vehicle, boat or animal shall also be seized by the officer empowered under sub-section (7), and such officer, after affording an opportunity of being heard to such owner, incharge or driver may impose a penalty not exceeding 30 per cent of the value of the goods carried and shall release the vehicle, boat or animal on the payment of the said penalty or on furnishing such security in such form as prescribed under clause (b) of sub-section (7) : Provided further that when an owner, incharge or driver of a vehicle, boat or animal is found guilty second time of the offence mentioned in the preceding proviso, he shall be liable to a maximum penalty as mentioned in the preceding proviso and the vehicle, boat or animal carrying the goods may be kept seized and detained for a period not exceeding 30 days after the date of the payment of the penalty or furnishing of the security. (b) Such officer may release any of the goods seized under sub-section (5) or sub-section (6) on payment of the penalty under clause (a) or on furnishing such security in such form as may be prescribed for the payment thereof, as he may consider necessary. " ;