- (1.) This instant sales tax revision petition is directed against the order of the Rajasthan Tax Board dated April 3, 2006 in Appeal No. 628/2005/Bharatpur by which penalty under section 78(5) was sustained by the Rajasthan Tax Board. The revision petition was admitted on the following questions of law: "(a) Whether without establishing the violation of requirement of section 78(2) penalty under section 78(5) can be levied or not? (b) Whether the finding arrived by the learned Rajasthan Tax Board is contrary to the law and facts of the case and is perverse? (c) Whether the penalty under the provisions of the Rajasthan Sales Tax Act, 1994 as per section 78 can still be upheld if the documents were as required by section 78 of the Act? (d) Whether on correct interpretation of the provisions of section 78 penalty can be levied where no inquiry has been made? (e) Whether on the facts and circumstance of the case, the learned Rajasthan Tax Board is justified in upholding the penalty on the fact which is against the record and is totally perverse?" The brief facts which can be noticed on perusal of the impugned order and arguments of the counsels are that the respondent is carrying on the business of iron goods and other allied business. During the course of its business the assessee had purchased goods from one Rajeev Prakash, Kan-pur against C form and was intended for onward sale in the State of Rajasthan to one Udairam AS Bheru Bazar, Balotra. When the goods were being carried the officers of the Revenue Department intercepted the vehicle bearing No. RK 14G-7324 near Nimaj, at Samokhi near Pali where it was noticed by the officers on perusal of the bill that Sariya T.O.R. was being carried and along with the vehicle, the officers found one GR No. 1419 dated August 18, 1997 issued by one SK Transport (Bharatpur), bill bearing No. 418/dated August 18, 1997 wherein Sariya 15.460 tonne with a value of Rs. 2,16,440 as ST paid was issued by the petitioner Mohan Iron Depot. On further verification the officer of the Revenue Department was prima facie of the view that the bill is not proper as some discrepancies were noticed. On further interrogation by the officers, the driver conveyed that the goods (TOR Sariya) were loaded, 50/60 kms. near Kanpur (UP) on Kolkata Road, on August 17, 1997 and the said goods were directly dispatched without any unloading at Bharatpur towards Balotra. The driver produced soma details/visiting card of Assam Rajasthan Road Lines, 133/248 T.P. Nagar Kanpur and conveyed that the goods were filled in through the said transporter and he was instructed that he will get some documents from a concern in Bharatpur and proceed towards Balotra. He conveyed that the bill/bilty was provided to him by someone at the Bharatpur, Chungi Naka but he did not remember the name and address of the person who gave the envelope and he further conveyed that the documents relating to the party of Kanpur was handed over by him to the person who came to deliver the said papers. He further conveyed that the goods were loaded from the factory near Kanpur on August 17, 1997 in the evening between 6 to 7 pm, it was weighed on weighing scale in the factory itself and that the said vehicle reached Bharatpur on August 19, 1997 where he got made Behti (T.P.) at Chungi Naka of Bharatpur Nagar Parishad.
(2.) On the above facts, the officers came to the conclusion that the goods were being transported with the intention of evasion of tax therefore a notice under section 78(4)(a) of the R.S.T. Act 1994, was given to the vehicle owner/driver. The owner of the firm also appeared and produced some documents contending that the firm is registered under RST and CST and also produced photocopy of bill/bilty and declaration form ST 18A, of the Kanpur party. It was submitted that on the instruction of Balotra party the goods were not unloaded at Bharatpur and were directly being sent to Balotra after issuing bills. He further submitted that though RST was charged at Rs. 14 per kg. at Rs. 8,325 but in the bill the tax was apparently not shown by mistake and it was inclusive of RST, however in the books of accounts this factum was clearly recorded.
(3.) On account of the circumstances noted above and dissatisfied with the explanation the officer imposed penalty under section 78(5) at Rs. 44,772 being 20 per cent of the estimated market value of the goods.;