1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER S.B.SALES TAX REVISION PETITION NO.224/2008 Assistant Commercial Taxes Officer, FS-I, Jaipur Vs. M/s Prakash Punj, Pech Area, Bhilwara 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 Mr.Vivek Singhal, for the respondent BY THE COURT: 1. Heard learned counsel for both the parties. 2. Briefly stated the facts of the case are that on 6.9.1997 when Vehicle in dispute was checked by the Assessing Officer, it was found that declaration form ST 18-A was not accompanied with other relevant documents of the goods. Therefore, a notice was issued to respondent to show cause as to whey penalty may not be imposed under Section 78(5) of the Rajasthan Sales Act, 1994 (hereinafter referred as 'the Act'). In response to show cause notice, the respondent/assessee filed written 2 reply, wherein it was submitted that declaration form ST 18-A had been sent by him, but before it could reach, the goods had been sent. Therefore, declaration form ST 18-A could not be produced at the time of checking of vehicle. However, declaration form ST 18-A was produced before the Assessing Officer along with reply to show cause notice. 3. The Assessing Officer was of the view that since declaration form ST 18-A of the Act was not accompanied with the goods, therefore, penalty is liable to be imposed and consequently he imposed a sum of Rs.36,206/- as penalty under Section 78(5) of the Act. Being aggrieved with the same, an appeal was preferred by the assessee, which was allowed by the Dy.Commissioner(Appeals). Thereafter, revenue preferred appeal before the Rajasthan Tax Board, which was dismissed vide order dated 30th August, 2003, which is under challenge in this revision petition. 4. Submission of the learned counsel for the petitioner is that since declaration form was not accompanied with the goods at the time of checking of the vehicle, therefore, penalty was attracted and it was rightly imposed by the Assessing Officer. Therefore, the orders passed by the Dy.Commissioner(Appeals) as well as the 3 Tax Board are liable to be set aside. 6. Learned counsel for the respondent contended that present matter is fully covered by the judgment of Hon'ble the Apex Court in State of Rajasthan & Anr. vs. D.P. Metals reported in (2002) 1 SCC 279 wherein provisions of Sections 78(5) & 78(2) were considered by the Hon'ble Apex Court and it was held that if due to mistake declaration form could not be produced, then principles of natural justice require that an opportunity should be granted. Since assessee had already filed declaration form with reply to show cause notice before the Assessing Officer, therefore, there was sufficient compliance of the provisions of Sections 78(2) and 78(5) of the Act as well as the judgment of the Hon'ble Apex Court in the case of State of Rajasthan & Anr. vs. D.P.Metals (supra). Therefore, penalty order has rightly been set aside by the Dy. Commissioner(Appeals) as well as the Rajasthan Tax Board and this is not a fit case for interference in both the orders. 7. I have considered the submissions of learned counsel for both the parties in the light of reasons assigned by both the appellate authorities for setting aside the penalty order and the observations of the Hon'ble Apex Court 4 in the case of State of Raj. & Anr. vs. D.P.Metals (supra). There is no dispute between the parties that declaration form was not accompanied with the goods when the vehicle was checked, but it was produced along with reply to show cause itself before the Assessing Officer. Hon'ble the Apex Court in the case of State of Raj. vs. D.P.Metals (supra) held, “If by mistake some of the documents are not readily available at the time of checking, principles of natural justice may require some opportunity being given to produce the same.” 8. As per observation of the Hon'ble Apex Court, a notice to show cause was given to the assessee and in response thereto, declaration form was produced along with reply to show cause notice before the Assessing Officer itself. In these circumstances, there is sufficient compliance of the provisions of Sections 78(2) & 78(5) of the Act and the observation of the Hon'ble Apex Court in the case of State of Raj. & Anr. vs. D.P.Metals (supra). 9. In these circumstances, I do not find any merit in this revision petition and the same is, accordingly, dismissed with no order as to costs. (Narendra Kumar Jain),J. BKS/- 5