STR- 283/07-M/s Mahaveer Traders Vs. A.C.T.O., Flying Squad, Alwar Judgment dt.18.2.09 1/4 S.B. CIVIL SALES TAX REVISION PETITION NO.283/2007 M/s Mahaveer Traders Vs. A.C.T.O., Flying Squad, Alwar. Date of Order : 18th February, 2009 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. Sanjeev Johari for the petitioner. Mr. V.K. Mathur with Mr. Rishab Sancheti for the respondent. --------- 1. Heard learned counsels. 2. This revision petition is directed against the order of Tax board dated 26th June, 2007 whereby the Tax Board allowing the appeal of the revenue restored the penalty under Section 78 (10-A) of R.S.T. Act, 1994 on the respondent assessee of a sum of Rs.1,32,917/- though the first appellate authority on the appeal filed by the assessed had reduced the said penalty to 5% of the said value of the goods as the learned assessing authority has imposed the penalty @ 50% of the value of the goods. 3. The learned counsel for the revenue Mr. Sancheti urged that at the time of checking on 7.1.2004 of vehicle No.HR-47A-4944 the goods in question were found to be 181 bags of 'Mung' whereas the driver of the truck stated that the goods in question were 'Maize' and the another set of papers found with the vehicle, the goods described were 'Potato', therefore, on account of this confusion, the real description of the goods was not clear and, therefore, the STR- 283/07-M/s Mahaveer Traders Vs. A.C.T.O., Flying Squad, Alwar Judgment dt.18.2.09 2/4 assessing authority imposed the aforesaid penalty. 4. However, when the documents in question available with the Driver were properly checked by the assessing authority a Bill No.132 dated 6.1.2004 of the respondent assessee M/s Mahaveer Traders representing the correct description of 181 bags of 'Mung' itself were found with the same vehicle along with the Transport Receipt No.1440 dated 6.1.2004 of the Patel Transport Company. There is no dispute from the side of Revenue about the genuineness of these documents tallying with the description of goods actually found in the vehicle they were not doubted by the revenue. The penalty in question was imposed by the assessing authority on account of the aforesaid confusion. 5. The first appellate authority had reduced the said penalty to 5% of value of the goods which stands paid by the respondent assessee. 6. The learned Tax Board while restoring the penalty of 50% of the value of the goods has reiterated the same confusion and justified the restoration of the said penalty at the rate of 50% of the value of the goods. The learned Dy. Commissioner (Appeals) had reduced the said penalty from 50% of the value of the goods to 5% of the value of the goods following the Division Bench judgment of this STR- 283/07-M/s Mahaveer Traders Vs. A.C.T.O., Flying Squad, Alwar Judgment dt.18.2.09 3/4 Court in the case of State of Rajasthan Vs. Tajiander Pal – Tax Up- Date (6) Part 3 page 84. 7. Having heard learned counsel and upon perusal fo the impugned order, this Court is of the view that the learned Tax Board was not justified in restoring the penalty as imposed by the learned assessing authority on the basis of the aforesaid confusion. Once it is not doubted by the Revenue that the documents giving correct description of the goods found in transit were found with the same vehicle and the genuineness of these documents were never doubted by the revenue authorities, the imposition of penalty cannot be made even for such bonafide mistake which might have occurred at the end of the driver of the vehicle. The intention of penal provisions in the statute can never be to penalise the subject or assessee even for bonafide mistake that too with such a heavy penalty to the extent of 50% of the value of the goods which may be far more than even the incident of tax on the goods in question even though admittedly there was no evasion of tax, intended or actual. 8. The Division Bench Judgment of this Court in Tejiander Pal's case (supra) had clearly and elaborately discussed the provisions of Section 78 (10-A) of the Act and was of the opinion that the penalty at the rate of 5% of value of the goods, in such circumstances, where the genuineness of documents was not in doubt but from the STR- 283/07-M/s Mahaveer Traders Vs. A.C.T.O., Flying Squad, Alwar Judgment dt.18.2.09 4/4 check post the seal was not obtained by the driver of the vehicle still holds the field. 9. In view of this, this revision petition deserves to be allowed and the same is accordingly allowed and setting aside the order of the learned Tax Board dated 26th June, 2007, the order of the first appellate authority dated 11.4.2005 is liable to be restored and the same is accordingly restored. No order as to costs. [ DR. VINEET KOTHARI ], J. item No.7 babulal/-