Alok Sharma, J. - (1.) A vehicle bearing registration No. RJ -14 -1G -5043 was intercepted and checked off the National Highway No. 8 when in Rajasthan while in transit from Delhi to Mandasur (M.P.). Even though documents accompanying the goods as mandated under the Rajasthan Sales Tax Act, 1994 (hereinafter "the Act of 1994") and Rules made thereunder for goods in transit through Rajasthan were submitted, the assessing officer invoked circular dated May 20, 1996 issued by the Commissioner, Commercial Tax Department, Jaipur, requiring that the vehicle with goods in transit not deviate from National Highway to any road/route leading to city/town/village or any other place within the territory of the State of Rajasthan, and based on the purported recorded statement of the driver -cum -in -charge of the vehicle one Jeet Singh confessing to the goods in fact being destined for Jaipur as also an enquiry report obtained from the Delhi Sales Tax Department, allegedly finding that three consignor firms, i.e., M/s. Asian Trading Company, M/s. Naurang Enterprises and M/s. Rajdhani Trading Company whose goods were being transited allegedly registered with the Delhi Sales Tax Department, did not exist, concluded that there was a clear intent to deliver goods in Rajasthan based on forged documents and evade tax under the then extant Act of 1994. He thereupon visited the assessee with penalty under Sec. 78(5) of the Act of 1994 and tax and cess under Sec. 78(11) thereof amounting to Rs. 4,44,280 in the aggregate. Aggrieved, the assessee filed an appeal. The appellate authority found that the order passed by the assessing officer on November 5, 2001 was vitiated for perversity (i) having overlooked relevant evidence in defence filed with the reply to the show -cause notice such as the registration documents both of the consignors and the consignees, (ii) documents accompanying the goods, evidencing transport of goods from Delhi to Mandasur (M.P.), and (iii) the affidavits of the consignee firms admitting to having purchased the goods in transit without any enquiry to falsify them. It was held that the route taken by the vehicle in issue, i.e., off National Highway No. 8 and the statement of the driver without any opportunity to the assessee to confront him was implausible as a foundation of the impugned order dated November 5, 2001. It was held that it was incumbent upon the assessing officer to establish from the evidence taken at an enquiry that the goods being transported were sold and to be delivered in the State of Rajasthan and nothing from the material on record buttressed this conclusion which was a sine qua non for the levy of tax, cess and penalty. And for this reason neither the tax and surcharge, nor penalty on the goods could be levied. In the circumstances, the order of assessing officer dated November 5, 2001 was set aside by the appellate authority vide its order dated November 10, 2003. Aggrieved, the Revenue filed a second appeal under the Act of 1994 before the Tax Board. Vide order dated January 12, 2007, the said appeal has been dismissed. Hence this revision.
(2.) Heard. Perused the impugned order. Considered.
(3.) The basic question in this petition is whether or not vehicle bearing registration No. RJ -14 -1G -5043 belonging to the respondent -assessee was transiting goods from Delhi to Mandasur (M. P.) on behalf of the three consignors to genuine consignees or was in fact engaged instead in clandestinely delivering goods in the State of Rajasthan and evade tax. It is not the case of the Revenue that the documentation of the goods in transit were non -compliant with the Act of 1994 and the Rules made thereunder, in so far as they applied to transit of goods from one State to another through the State of Rajasthan. The appellate authority and the Tax Board have held for plausible reasons that the order of the assessing officer passed on November 5, 2001 visiting the respondent -assessee with the tax and surcharge under Sec. 78(11) of the Act of 1994 and penalty under Sec. 78(5) thereof was perverse to the evidence on record and also vitiated for failure to conduct an appropriate enquiry. They found that the documents of registration of consignee and the consignor firms as also the challans submitted by them with the Delhi Sales Tax Department were not investigated or inquired into by the assessing officer who instead relied upon the unverified and unconfirmed report of the Delhi Sales Tax Department alone with regard to the non -existence of the three consignors firm. It was held that the documents filed by the assessee as to the registration of the consignor firms and consignee firm ought to have been properly investigated in a proper enquiry and due weight given to the affidavits filed in support thereof which remained uncontroverted.;