1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER S.B.SALES TAX REVISION PETITION NO.275/2008 Assistant Commercial Taxes Officer Vs. M/s Gupta Theli Bhandar & Anr. DATE OF ORDER: 11-11-2010 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 None for the respondent. BY THE COURT: 1. Heard learned counsel for the petitioner. 2. Briefly stated the facts of the case are that on 16th April, 1999 Vehicle No.HR-47/4298 was checked and it was found that declaration form ST-18A was not accompanied with other relevant documents of the goods. Therefore, a notice to show cause was given to the respondent as to why penalty may not be levied under Section 78(5) of the Rajasthan Sales Tax Act, 1994 (hereinafter referred as 'the Act'). The respondent filed written reply to the notice, wherein the mistake for not producing the declaration form ST 18-A of the Act was admitted. Since declaration form ST 18-A of the 2 Act was neither accompanied with the goods at the time of checking of the vehicle nor it was produced in response to show cause notice, therefore, Assessing Officer imposed a penalty of Rs.35,230/- under Section 78(5) of the Act. 3. Being aggrieved with the same, the assessee preferred an appeal, which was allowed by the Dy. Commissioner(Appeals) on two grounds; first is that Assessing Officer has not proved the mens rea on part of the assessee to evade the tax and second, is that matter relates to the period prior to 22nd March, 2002, therefore, order could not have been passed against owner of the goods and it could have been passed only against incharge of the vehicle/goods. Being aggrieved with the same, the revenue preferred appeal before the Rajasthan Tax Board, which was dismissed vide judgment dated 3rd April, 2007, which is under challenge in this revision petition preferred on behalf of the revenue. 4. Submission of the learned counsel for the petitioner is that admittedly declaration form ST 18-A of the Act was not produced at the time of checking of vehicle and subsequently along with reply to show cause notice before the Assessing Officer. Therefore, penalty under Section 78(5) of the Act was rightly imposed by the Assessing Officer. So far as second ground 3 for setting aside the penalty order by Dy.Commissioner (Appeals) as well as the Rajasthan Tax Board that penalty order could not have been passed against the owner of the goods as matter was relating to the period prior to 22nd March, 2002 is concerned, the same is contrary to the decision of the Hon'ble Apex Court in the case of Assistant Commercial Taxes Officer Vs. Bajaj Electrical Ltd. reported in (2009) 1 SCC 308. Therefore, this revision petition be allowed and orders passed by both the appellate authorities be set aside. 5. No one is present on behalf of respondent despite service of notice. 6. I have considered the submissions of the learned counsel for the petitioner in the light of reasons assigned by both the appellate authorities for setting aside the penalty order passed by the Assessing Officer. Penalty under Section 78(5) of the Act is attracted for breach of the provisions of Section 78(2)(a) of the Act. Admittedly, declaration form ST 18-A was neither produced at the time of checking of the vehicle nor along with reply to show cause notice before the Assessing Officer. Therefore, it is a clear case of breach of provisions of Section 78(2) of the Act. The Dy.Commissioner (Appeals) while setting aside the penalty order 4 observed that Assessing Officer did not make any inquiry and failed to prove the guilty mind or mens rea on part of the assessee. Therefore, penalty order is liable to be set aside. The reasoning assigned by the Dy. Commissioner (Appeals) is contrary to the judgment of the Hon'ble Apex Court in Guljag Industries vs. Commercial Taxes Officer reported in (2007) 7 SCC 269, wherein the Hon'ble Apex Court held that mens rea is not essential ingredient for contravention of Section 78(2) of the Act. 7. Apart from above, the Dy. Commissioner (Appeals) as well as the Rajasthan Tax Board, both have set aside the penalty order on the ground that penalty order has been passed against the owner of the goods, whereas penalty order could not have been passed against owner of the goods for an offence relating to the period prior to 22nd March, 2002. The reason assigned by both the appellate authorities is illegal and contrary to the law laid down by the Hon'ble Apex Court. 8. In Assistant Commercial Taxes Officer vs. Bajaj Electricals Ltd.(supra), the Hon'ble Apex Court considered the provisions of Section 78(2) and 78(5) of the Act and held that the expression “person in-charge of the goods” under Section 78(5) would include the owner of the 5 goods. In these circumstances, I find that orders passed by both the appellate authorities are not sustainable in the eye of law and are liable to be set aside. 9. Consequently, revision petition filed by revenue is allowed, impugned judgment dated 3rd April, 2007 passed by the Rajasthan Tax Board, order dated 20th July, 2005 passed by the Dy.Commissioner (Appeals) are set aside and order dated 17the April, 1999 passed by the Assessing Officer is restored. Since no one is present on behalf of the respondent, therefore, there is no order as to cost. (Narendra Kumar Jain),J. BKS/-