Alok Sharma, J. - (1.) A challenge has been made to the order dated 13 -7 -2012, passed by Rajasthan Tax Board, Ajmer (hereinafter 'the Board'), sustaining the order dated 20 -10 -2009 passed by Deputy Commissioner (Appeals) confirming the order dated 17 -8 -2001 visiting the petitioner company with liability in a sum of Rs. 3,85,190/ - as penalty under section 78(5) of the Rajasthan Sales Tax Act, 1994 (herein after to be referred '1994 Act').
(2.) THE facts of the case are that ACTO Flying Squad Nimbahera intercepted truck No. HR -46/3642 on 1 -8 -2001 at Nimbahera in Chittorgarh District, Rajasthan on its way from Aurangabad to Jaipur wherein 174 colour televisions were being transported to the petitioner's branch office at Jaipur. On checking of the documents required to accompany the goods in transit under Section 78(2) of the 1994 Act, it was found that though the goods in issue were accompanied by a challan invoice issued on 29 -7 -2001 valued at Rs. 12,83,939/ -, loading slip No. 2531 dated 28 -7 -2001 and GR No. 358 dated 30 -7 -2001, the declaration form ST18A was found missing. The truck driver in his statement before the Assessing Officer apparently stated that he had not received form ST -18 -A when the goods were despatched from Aurangabad. In the circumstances, a show cause notice was issued to petitioner company prima facie finding a contravention of Section 78(2) of the 1994 Act read with Rule 53(1) (a)(ii) of the Rules. Reply to notice along with declaration form ST -18 -A bearing No. 22164/16 was filed by the petitioner company. It was also stated in the alternative that the goods were under branch transfer from the petitioner company's factory to its branch office at Jaipur and hence in any event the declaration form ST -18 -A was not required to accompany the goods in transit in any way as in the context of transaction no evasion of tax was conceivable. It was prayed that in the circumstances show cause notice for levy of penalty be dropped. The assessing officer however concluded that from the statement of the driver of the truck No. HR -46/3642 as also the transport company's letter it was apparent that the petitioner company had not at all handed over the declaration form ST -18 -A to the transporter at Aurangabad and its defence that form ST -18 -A in fact had been submitted but accidentally left by the driver was false. Holding that submission of declaration form ST -18 -A with the reply to the show cause notice by the petitioner company was only a cover up of the company's intent to evade tax, the Assessing Officer held the company liable and visited it with penalty of Rs. 3,85,190/ - under Section 78(5) of the 1994 Act. The order passed by the assessing officer was sustained both by the appellate authority as also the tax Board. Hence this revision petition. Mr. Sanjay Verma, officer of the petitioner company appearing on its behalf, owing to Advocate's strike submits that the judgment of the assessing officer upheld by the appellate authority and the Tax Board is contrary to the judgment of the Hon'ble Supreme Court in the case of State of Rajasthan Vs. D.P. Metals [ : (2002) 1 SCC 279], wherein the Hon'ble Supreme Court has held that if by mistake some of the documents required under Section 78(2) of the 1994 Act are not readily available at the time of checking of the goods in transit, principles of natural justice would require an opportunity to the assessee to produce the same. And on submission of such documents, if not forged or fabricated, penalty cannot be levied. He submits that the judgment of the Hon'ble Supreme Court in the case of D.P. Metals (supra) has been since followed consistently in various judgments such as ACTO Vs. Lloyd Electric & Engg. Ltd. [2011 -15 VAT Reporter 40 (HC)], ACTO Vs. Kiran Global Cams Piplag [2011 -16 VAT Reporter 225 (HC)], Cera Tech India Vs. ACTO [2013 -35 Tax Update 49 (HC)], ACTO Vs. Tata Iron Steel Co. Ltd. [2013 -35 Tax Update 249 (HC)]. He submits that the Tax Board has inexplicably and wrongly construed the judgment of the Hon'ble Supreme Court in the case of D.P. Metals (supra) in holding that non -accompaniment of requisite declaration form ST -18 -A with the goods in transit was rectifiable only when it was for reasons of human error. Only then subsequent submission could absolve the assessee. But where intent to evade tax was discernible, penalty could be levied in spite of submission of declaration form ST -18 -A with the reply by the assessee held the Tax Board. He has further submitted that the petitioner assessee had filed its reply to show cause notice asserting that its Aurangabad office had indeed sent the declaration form ST -18 -A to the transporter, yet the say of the assessee was overlooked without any good cause on the ipse dixit of the Assessing Officer arbitrarily accepting the version of the driver of the truck/transporter without any opportunity of their cross examination or an enquiry in this regard. He further submits that in any event a reading of the judgment in D.P. Metals (supra) would indicate that the cause of the error where requisite documents were not found in the first instance accompanying the goods in transit is not relevant and if any document including the declaration form ST -18 -A was supplied with the reply to show cause notice, penalty under Section 78(5) of the 1994 Act cannot be levied. The representative of the petitioner company then pointed out that it is not in dispute that goods in transit were in the course of branch transfer without any tax liability and hence in any event no tax evasion could be attributable to the petitioner company warranting levy of penalty under Section 78(5) of the 1994 Act.
(3.) HEARD . Considered.;