- (1.) HEARD learned counsel for the parties.
(2.) THIS petition is filed challenging the order of the Rajasthan Taxation Tribunal, Jodhpur dated 1.1.1998 allowing the revision filed by the respondent, Assistant Commercial Taxes Officer, Flying Squad, Raniwara, by setting aside the orders of the Rajasthan Sales Tax Tribunal dated 31.3.93 and restoring the orders of the ACTO dated 16.11.90 and the orders of the Deputy Commissioner (Appeals) dated 7.1.91. These orders relate to levy of penalty under Sec. 22-A (7) of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as "the Act, 1954"). FACTS: The facts which emerge from the proceedings are that on 1.11.90 at zero hours (12.00 AM), at the check post Abu Road, vehicle No. GJ 02/T 5721 carrying the goods was checked. On making a demand, the driver of the vehicle furnished GR No. 1 dated 31.10.90 issued by M/s Delhi Bombay Road lines, Abu Road. The consignor of the goods was shown to be M/s Sumit Marbles, Abu Road. There was Bill No. 122 dated 31.10.90 with regard to 50.31 Sq. Metres of granite priced at Rs. 34,494.95 NP and the recipient was shown to be M/s Sri Parashwanath Granities. On being verified the vehicle, the goods were found to be more than as were shown in the said bill. The driver did not tender any other document. However on searching the vehicle, two envelopes were found, one of which was of M/s Parashwanath Granities- the present petitioner, and another was bill of M/s Hindustan Granites, Abu Road. The bill issued by the present petitioner M/s Parashwanath Granities was of 50.31 Sq. Meters of granite priced at Rs. 47,102.85 NP coupled with excise GR No. 1 dated 31.10.1990. Apparently, the goods carried in the vehicle so far as the present petitioner is concerned, were accompanying the relevant documents delivered to the driver but the driver does not appear to have handed over the said documents to the officer at the check post. Being suspicious of the evasion of tax, after seizing the goods, a notice under Rule 54 was issued on 16.11.90. On 1.11.90, the representative of the petitioner firm appeared and requested for the release of the goods by submitting security. He expressed his readiness to deposit the security amount that may be fixed by the ACTO. An amount of Rs. 14,150/-, 30% of the value of the goods, was deposited as security under protest. The goods were released on 1.11.90.
(3.) IN response to the notice to show cause against the proposed levy of penalty u/s. 22A(7) of the Act, 1954, it was submitted by the petitioner that he had delivered the relevant documents to the transporter which were found to be in the vehicle at the time of seizure of the goods and, therefore, obviously he has discharged his obligation under Sec. 22-A of the Act of 1954. There is no finding that the bills or the other documents were fictitious or false. If by mistake, the driver of the transport has not produced the documents which were with him at the time of checking the vehicle, penalty ought not be levied against him for the breach of Rule 57-A, as there was no breach of Section 22A(7) of the Act, 1954 and the rules framed thereunder. However, the explanation was not accepted only for the reason that the driver on demand has not delivered the relevant documents and penalty @ 30% of the value of goods, as was shown in the bill which was accompanying the goods, was levied vide order dated 16.11.90. On appeal, the Deputy Commissioner (Appeals), Commercial Taxes, vide his order dated 7.1.91 affirmed the levy of penalty. He was of the opinion that not showing the bill at the check post shows the mind of the assesses to evade the tax in respect of the goods in question. ;