VINEET KOTHARI, J. - (1.) THIS revision petition under Section 86 of the Rajasthan Sales Tax Act, 1994 (hereinafter referred to as 'the Act of 1994') is directed against the order of Tax Board, Ajmer, dated February 17, 1999 allowing the appeal of the assessee -respondent No. 430/98/ST/Jaipur and setting aside the penalty of Rs. 39,326 (rupees thirty nine thousand three hundred twenty six only) imposed under Section 78(5) of the Act of 1994.
(2.) AGAINST the penalty order dated November 17, 1997 imposing the said penalty, the first appeal filed by the assessee failed and the second appeal was allowed by the Tax Board. Hence, the Revenue has filed the present revision petition raising the question of law as to whether the blank form No. ST 18A found along with the other documents relating to the goods in transit namely, the bill and bilty could be said to be the non -compliance of Section 78(2) of the Act and whether the Tax Board was justified in quashing the penalty in such circumstances. In fact, the said issue as to whether for a blank form No. ST 18A found with the transit of goods, penalty under Section 78(5) of the Act can be imposed or not is an issue concluded by earlier pronouncements of this Court which have been upheld up to apex Court of the country yet such cases keep on coming to the dockets of this Court and they are at the instance of Revenue in larger number. As a matter of fact, whether the penalty in a particular case is imposable or not is a matter within' the discretion of the authority concerned and therefore, once the final fact -finding body namely, the Tax Board, on the basis of the facts and evidence available before it quashed and set aside such penalty, it would be a matter of discretion and the said exercise of discretion would not even give rise to a question of law but since the Revenue files such revision petitions in this Court stretching the matter into the realm of mixed question of fact and law, such revision petitions are entertained and decided on merit. In fact, when the penalty is quashed and set aside by the final fact -finding body, it remains a finding of fact that in the facts and circumstances of the case there was no deliberate attempt to evade the tax and therefore, no penalty can be imposed and such finding should strictly fall within the realm of finding of fact only. However, if such penalty is upheld or re -imposed by the Tax Board after having been set aside by the first appellate authority since the brunt of penalty will have to be borne by the assessee, he cannot be naturally left remediless at the stage of Tax Board and therefore, he is entitled to avail the further remedy either in revisional jurisdiction under Section 86 of the Act of 1994 or by way of writ petition under Article 226 or 227 of the Constitution of India. Therefore, by necessary reasoning of parity the Revenue is also equally entitled to agitate further in the High Court its case for imposition of penalty. Therefore, only if a case is made out of prima facie for imposition of penalty and the Tax Board has set aside the same the Revenue is also entitled to bring up the case to this Court. No water -tight compartment can be made on the mixed question of fact and law about the case and therefore, the present revision petition is held maintainable under Section 86 of the Act of 1994, only to see further whether, it was a fit case for imposition of penalty under Section 78(5) of the Act if a blank form No. ST 18A is found along with the other prescribed documents of transit in accordance with Section 78(2) of the Act.
(3.) COMING to the merits of the case, the requirement of presence of mens rea or guilty animus in the cases under Section 78(5) of the Act of 1994 has been a matter of debate before this Court and the honourable Supreme Court of India also.;