1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER S.B.SALES TAX REVISION PETITION NO.289/2008 Asstt. Commercial Taxes Officer Vs. M/s Bhilwara Spinners Ltd.,Bhilwara DATE OF ORDER: 09-11-2010 P R E S E N T Hon'ble Mr. Narendra Kumar Jain,J. Mr.A.Kaushik on behalf of Mr.R.B.Mathur, for the petitioner Mr.V.C.Sogani & Mr.P.K.Kasliwal, for the respondent BY THE COURT: 1. Heard learned counsel for both the parties. 2. Briefly stated the facts of the revision petition are that Vehicle No.HR47-1494 was checked on 4th December, 2000 by the Assessing Officer, all documents were accompanied with the goods, but in declaration form ST-18C the bill number and date were not mentioned. The Assessing Officer was of the view that since declaration form ST 18C was not filled completely, therefore, penalty is attracted to be levied under Section 78(5) of the Rajasthan Sales Act, 1994 (hereinafter referred as 'the Act'). He, therefore, issued a notice to the assessee as to why penalty may not be levied 2 under Section 78(5) of the Act. 3. The assessee filed its reply contending that declaration form had been sent to the vendor of the goods with the instruction to fill it completely and hand over to the vehicle driver, but the said details could not be filled by him due to inadvertence. However, the assessee also submitted another complete declaration form ST-18C along with reply to show cause notice. 4. The Assessing Officer did not agree with the explanation of the assessee and passed penalty order dated 6th December, 2000 levying penalty under Section 78(5) of the Act. Being aggrieved with the same, the assessee preferred an appeal, which was allowed by the Dy.Commissioner(Appeals) vide judgment dated 27th May, 2002. Department again preferred appeal before the Rajasthan Tax Board, but the same was also dismissed by the order dated 8th July, 2003, which is under challenge in this revision petition. 5. Submission of the learned counsel for the petitioner is that since declaration form was not filled completely, therefore, there was breach of the provisions of Section 78(2)(a) of the Act. Therefore, penalty was rightly imposed by the Assessing Officer and Dy.Commissioner 3 (Appeals) as well as the Rajasthan Tax Board both committed illegality in setting aside the penalty order passed by the Assessing Officer. Therefore, both the orders are liable to be set aside by this Hon'ble Court. 6. Learned counsel for the respondent argued that as per judgment of Hon'ble the Apex Court in State of Rajasthan & Anr. vs. D.P.Metals reported in (2002) 1 SCC 279 an opportunity is required to be given by Assessing Officer in respect of incomplete form or if the goods were not accompanied with the declaration form itself. A notice to show cause was given to assessee in the present case and in response thereto assessee already explained the position and also furnished fresh declaration form ST-18C along with reply to show cause notice, therefore, there was sufficient compliance of provisions of Section 78(2) and 78(5) of the Act. Therefore, the Dy.Commissioner(Appeals) as well as the Rajasthan Tax Board rightly set aside the penalty order passed by the Assessing Officer and this is not a fit case for interference in the finding of the appellate authority. 7. I have considered the submissions of learned counsel for both the parties and examined the reasons assigned by the Rajasthan 4 Tax Board as well as the Dy.Commissioner (Appeals) for setting aside the penalty order passed by the Assessing Officer. There is no dispute between the parties that all other documents were available including bill of the goods and the same were produced at the time of checking of the vehicle. The only deficiency in the declaration form ST-18C was that bill number and date were not mentioned in it. However, both the parties admit that bill itself was accompanied with the goods/vehicle. It is also admitted by both the parties that fresh declaration form ST-18C was produced by the assessee before the Assessing Officer along with its reply to show cause notice. As per judgment of Hon'ble the Apex Court in State of Raj. vs. D.P.Metals (supra) an opportunity is required to be given to the assessee, which was given in the present case also and in response to show cause notice, the assessee furnished the fresh declaration form i.e. ST-18C. This Court has already taken view in number of cases that if declaration form has been produced along with reply to show cause notice before the Assessing Authority itself then it is sufficient compliance of Section 78(2)(a) and no penalty under Section 78(5) of the Act is leviable. In these circumstances, I do not find any justified 5 reason to interfere in the orders passed by the Rajasthan Tax Board as well as the Dy.Commissioner(Appeals). 8. There is no merit in this revision petition and the same is dismissed with no order as to costs. (Narendra Kumar Jain),J. BKS/-