- (1.) This revision petition has been filed by the petitioner-Assistant Commercial Taxes Officer against judgment and order dated May 6, 2002 (annexure 5) passed by the Rajasthan Tax Board, Ajmer in Appeal No. 532 of 2002 by which the learned Tax Board allowed the second appeal filed by the respondent and set aside the order dated March 18, 2002 (annexure 4) passed by the Deputy Commissioner (Appeals)-II, Jaipur, as well as well as penalty order dated July 17, 2000 (annexure 3) passed by the Assistant Commercial Taxes Officer, Flying squad, Raniwada (hereinafter referred to as the "assessing authority") whereby the learned assessing authority imposed penalty of Rs. 87,875 against the respondent.
(2.) It arises in the following circumstances: On July 6, 2000, the vehicle No. GJ-9/V-7127 (hereinafter referred to as the vehicle in question), which was carrying 69 carton of yarn belonging to the respondent M/s. Rishab Special Yarns Limited, was intercepted and checked by the petitioner-Assistant Commercial Taxes Officer and during checking, it was found that the declaration form S.T. 18C was not accompanied with the goods. Since the goods in transit were not accompanied with the declaration form S.T. 18C, therefore, a notice dated July 6, 2000 under Section 78(5) of the Rajasthan Sales Tax Act, 1994 (hereinafter referred to as "the Act of 1994") for violation of the provisions of Section 78(2) of the Act of 1994 was issued by the assessing authority to the respondent-dealer as to why penalty be not imposed. A reply dated July 17, 2000 (annexure 2) to the said show cause notice was filed by the respondent stating inter alia that all papers were available at the time when the checking was made by the petitioner-Assistant Commercial Taxes Officer, but because of some negligence, the declaration form S.T. 18C could not be accompanied with the goods, though it was also filled-in-up. It was further alleged by the respondent that he had no mala fide intention and along with the reply the declaration form S.T. 18C was filed by the respondent. After examining the matter, the assessing authority came to the conclusion that the respondent was guilty of violating the provisions of Section 78(2) of the Act of 1994 and consequently, the assessing authority through order dated July 17, 2000 (annexure 3) imposed the penalty of Rs. 87, 875 on the respondent-dealer. Aggrieved from the said order dated July 17, 2000 (annexure 2), the respondent-dealer preferred an appeal before the Deputy Commissioner (Appeals), Commercial Taxes, Jaipur, under Section 84 of the Act of 1994 and through judgment dated March 18, 2002 (annexure 4), the Deputy Commissioner (Appeals), dismissed the appeal of the respondent and affirmed the order of the assessing authority dated July 17, 2000 (annexure 3) holding inter alia that the respondent was guilty of violating the provisions of Section 78(2) of the Act of 1994. Aggrieved from the said judgment dated March 18, 2002 (annexure 4) and order dated July 17, 2000 (annexure 3), the respondent preferred second appeal before the Rajasthan Tax Board, Ajmer, and the Rajasthan Tax Board, Ajmer, through impugned judgment dated May 6, 2002 allowed the appeal of the respondent and set aside the findings recorded by the learned first appellate authority through judgment dated March 18, 2002 (annexure 4) and the findings of the learned assessing authority through order dated July 17, 2000 (annexure 3). The Rajasthan Tax Board further came to the conclusion since there was no mens rea on the part of the respondent to evade tax, therefore, penalty imposed on the respondent could not be sustained. Aggrieved from the said judgment dated May 6, 2002 (annexure 5) passed by the Rajasthan Tax Board, the petitioner has filed this revision petition.
(3.) In this revision, the main case as put forward by the learned Counsel for the petitioner is that in cases when at the time of checking, the declaration form S.T. 18C is not found accompanied with the goods, the provisions of penalty Clauses embodied in Section 78(5) of the Act of 1994 for violation of the provisions of Section 78(2) of the Act of 1994 are automatically attracted and therefore, because of this fact, the impugned judgment dated May 6, 2002 (annexure 5) passed by the Rajasthan Tax Board cannot be sustained and is liable to be quashed and set aside.;