Sunil Kumar Garg, J. - (1.) This revision petition has been filed by the petitioner Assistant Commercial Taxes Officer against judgment and order dated 2.4.2002 (Annex.4) passed by the Rajasthan Tax Board, Ajmer in Appeal No. 626/2000 by which the learned Tax Board allowed the second appeal filed by the respondent and set aside the order dated 24.5.2000 (Annex.3) passed by the Deputy Commissioner (Appeals), Jodhpur as well as penalty order dated 7.11.1996 (Annex.2) passed by the Assistant Commercial Taxes Officer (Anti Evasion-III), Jodhpur (hereinafter referred to as the Assessing Authority) whereby the learned Assessing Authority imposed penalty of Rs. 10784/- against the respondent.
(2.) It arises in the following circumstances:- On 12.10.1996, the vehicle in question, which was carrying 6 cases of sanitary goods belonging to the respondent M/s. Aryan Pipe Traders, was intercepted and checked by the petitioner-Assistant Commercial Taxes Officer and during checking, it was found that the Declaration Form ST-18A was not accompanied with the goods. Since the goods in transit were not accompanied with the Declaration Form ST-18A, therefore, a notice 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 read with Rule 53 of the Rajasthan Sales Tax Rules, 1995 (hereinafter referred to as "the Rules of 1995") was issued by the Assessing Authority to the respondent-dealer as to why penalty be not imposed. A reply dated 30.10.96 (Annex.1) 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 and it was further submitted by the respondent that since the goods were not notified goods, therefore, Declaration Form ST-18A was not required. After examining the matter, the Assessing Authority came to the conclusion that the goods, which were being carried i.e. pipe fittings are sanitary goods included in the list of goods on which declaration form No. 18A is required, which was issued by the State Government through Notification No. F.4(1)FD/Tax.Div./2000-298 dated March 30th, 2000 and therefore, declaration form ST-18A was necessary and since it was not accompanied with the goods, therefore, the respondent was guilty of violating the provisions of Section 78(2) of the Act of 1994 read with Rule 53 of the Rules of 1955 and consequently, the Assessing Authority through order dated 7.11.1996 (Annex.2) imposed the penalty of Rs. 10784/- on the respondent-dealer. Aggrieved from the said order dated 7.11.1996 (Annex.2), the respondent-dealer preferred an appeal before the Deputy Commissioner (Appeals), Commercial Taxes, Jodhpur under Section 84 of the Act of 1994 and through judgment dated 24.5.2000 (Annex.3), the Deputy Commissioner (Appeals) dismissed the appeal of the respondent and affirmed the order of the Assessing Authority dated 7.11.1996 (Annex.2) holding inter-alia that goods in question were notified goods and therefore, declaration form ST-18A was required. Aggrieved from the said judgment dated 24.5.2000 (Annex.3) and order dated 7.11.1996 (Annex.2), the respondent preferred second appeal before the Rajasthan Tax Board, Ajmer and the Rajasthan Tax Board, Ajmer through impugned judgment dated 2.4.2002 as rectified on 3.5.2002 (Annx.4) allowed the appeal of the respondent and set aside the findings recorded by the learned First Appellate Authority through judgment dated 24.5,2000 (Annex.3) and the findings of the learned Assessing Authority through order dated 7.11.96 (Annex.2). 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 2.4.2002 (Annex.4) passed by the Rajasthan Tax Board, the petitioner has filed this revision petition.
(3.) In this revision, two submissions have been raised by the learned counsel for the petitioner:- (i) That the goods in question are included in the notified goods as per the list of goods on which declaration form No. 18A is required, which was issued by the State Government through Notification No. F.4(1)FD/Tax.Div/2000-298 dated March 30th, 2000 and therefore, the findings of the learned Tax Board in this respect cannot be sustained and are liable to be set aside. (ii) That when it is found that the goods in question were notified goods, accompanying of Declaration Form ST-18A with the goods was necessary and since it was not accompanied with the goods, therefore, if the Assessing Authority had imposed penalty on the respondent, it had committed no mistake in doing so and furthermore, since goods were not accompanied with the Declaration Form ST-18A, mens rea on the part of the respondent should have been treated as established. Hence, it was prayed this revision petition be allowed and the impugned judgment of the learned Tax Board be quashed and set aside and the order of the Assessing Authority be restored.;