[1] SB SALES TAX REVISION PETITION NO.147/2008 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR O R D E R S.B. SALES TAX REVISION PETITION NO.147/2008 ASSISTANT COMMERCIAL TAXES OFFICER, BHARATPUR Vs. M/s JAI NARAYAN BAJRANG LAL LODHI DATE OF ORDER : 26.10.2010 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. Achintya Kaushik for Mr. R.B. Mathur, for the petitioner. None present for the Assessee/non-petitioner. **** Heard the learned counsel for petitioner. 2. This Sales Tax Revision Petition under Section 86 of the Rajasthan Sales Tax Act, 1994 on behalf of the Assistant Commercial Taxes Officer, Flying Squad, Bharatpur, is directed against the impugned judgment dated 19.10.2005 passed by the Rajasthan Tax Board, Ajmer in Appeal No.675/2003/Churu, whereby the Tax Board allowed the appeal of assessee/respondent and set aside the Assessment Order as well as order of Deputy Commissioner(Appeals), whereby a sum of Rs.23,666/- was levied as penalty against the assessee under Section 78 (5) of the Rajasthan Sales Tax Act, 1994. [2] SB SALES TAX REVISION PETITION NO.147/2008 3. Briefly stated the facts of the case are that on 01.06.1999, the vehicle truck No. HR-38/4270 was checked. The vehicle driver and in charge of the goods produced Bilty Nos.5257 and 5256. The goods were not accompanied with other documents like Declaration Form ST 18-A. Since the required Declaration Form was not accompanied with the goods, therefore, the Assessing Officer issued a notice to the consignee firm for levying penalty under Section 78(5) of the Act. On 02.06.1999, the Manager of assessee appeared along with written reply to notice, wherein it was stated that at the time of checking of vehicle, the driver could not produce the form as the same was not given to him by them due to inadvertence, but there was no intention to evade tax, therefore, the notice be dropped. 4. It is relevant to mention that Form 18-A was not produced along with reply to show cause notice or at subsequent stage before passing an Assessment Order. 5. The Assessing Officer came to a conclusion that Form 18-A was necessary to be accompanied with the goods and since the same was not accompanied, therefore, there was [3] SB SALES TAX REVISION PETITION NO.147/2008 violation of Rule 53 as well as Section 78(2) and consequently, he levied penalty @ 30% of the value of goods. 6. Being aggrieved with the same, an appeal was preferred by the assessee but the same was dismissed by the Deputy Commissioner (Appeals) vide judgment dated 27.01.2003. The Deputy Commissioner(Appeals) observed that the assessee has not produced Form ST 18-A despite notice to show cause given to him, therefore, he has not complied with the provisions of Rule 53 and penalty is leviable, therefore, the order passed by the Assessing Officer is legal and no interference in the same is called for. Thereafter, the assessee preferred an appeal before the Rajasthan Tax Board, which was allowed vide judgment dated 19.10.2005, which is under challenge in this revision petition, preferred on behalf of Revenue. 7. The submission of learned counsel for petitioner is that admittedly, Declaration Form ST 18-A was not accompanied with the goods in movement when the vehicle was checked and the same was not even produced before the Assessing Officer along with reply to show cause notice, therefore, [4] SB SALES TAX REVISION PETITION NO.147/2008 penalty under Section 78(5) of the Act was rightly levied by the Assessing Officer and there was no reason for interference in the penalty order, but the Rajasthan Tax Board set aside the penalty levied in the case only on the ground that there was no mens rea proved for evasion of tax on the part of the assessee. He contended that in the facts and circumstances of the present case, mens rea was not required to be proved. He relied upon the judgment of Hon'ble Apex Court in State of Rajasthan And Another Vs. D.P. Metals, (2002)1 SCC 279. 8. No one is present on behalf of the assessee/non-petitioner despite service of notice of this revision petition. 9. I have considered the submissions of learned counsel for petitioner and examined the impugned judgment passed by the Rajasthan Tax Board, Ajmer. 10. So far as the facts of the case are concerned, there is no dispute that at the time of checking of vehicle on 01.06.1999, Form 18-A was not produced by the vehicle driver or in charge of the goods. The same was also not produced before the Assessing [5] SB SALES TAX REVISION PETITION NO.147/2008 Officer along with reply to show cause notice. 11. Learned Tax Board has set aside the order of Assessing Officer, upheld by the Deputy Commissioner(Appeals), only on the ground that Assessing Officer has not proved the guilty mind of the assessee, therefore, levying of penalty was not justified. The Tax Board observed as under:- "इस ूकरण मɅ कर िनधा[रण अिधकारȣ Ʈारा अूाथȸ åयवहारȣ का करापवंचन का दोषी मनोभाव ूमाǔणत नहȣं Ǒकया गया है इसिलए आरोǒपत शाǔःत को उिचत नहȣं कहा जा सकता है।" 12. Hon'ble the Apex Court in State of Rajasthan And Another Vs. D.P. Metals (supra), considered the provisions of Sections 78(5) and 78(2) of the Rajasthan Sales Tax Act, 1994 and held that 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. 13. Hon'ble the Apex Court further observed that where despite opportunity having been granted under Section 78(5) if the requisite documents referred to in clause (a) of sub-section(2) are not produced, even [6] SB SALES TAX REVISION PETITION NO.147/2008 though the same should exist, would clearly prove the guilty intent. The breach referred to in Section 78(5) can not be regarded as technical or venial. Once the ingredients of Section 78(5) are established, after giving a hearing and complying with the principles of natural justice, there is no discretion not to levy or levy lesser amount of penalty. Para 32 of the judgment is reproduced as under:- “32. Such submission of false or forged documents or declaration at the checkpost or even thereafter can safely be presumed to have been motivated by desire to mislead the authorities. Hiding the truth and tendering falsehood would per se show existence of mens rea, even if required. Similarly where, despite opportunity having been granted under Section 78(5) if the requisite documents referred to in clause (a) of sub-section(2) are not produced, even though the same should exist, would clearly prove the guilty intent. It is not possible to agree with the counsel for the respondents that breach referred to in Section 78 (5) can be regarded as technical or venial. Once the ingredients of Section 78(5) are established, after giving a hearing and complying with the principles of natural justice, there is no discretion not to levy or levy lesser amount of penalty. 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. This provision [7] SB SALES TAX REVISION PETITION NO.147/2008 cannot be read as to imply that the penalty of 30% is the maximum and lesser penalty can be levied. The legislature thought it fit to specify a fixed rate of penalty and not give any discretion in lowering the rate of penalty. The penalty so fixed is meant to be a deterrent and we do not see anything wrong in this. The quantum of penalty under the circumstances enumerated in Section 78(5) cannot, in our opinion, be regarded as illegal. The legislature in its wisdom has thought it appropriate to fix it at 30% of the value of goods and it had the competence to so fix. As held by this Court in Rai Ramkrishna v. State of Bihar [AIR 1963 SC 1667:(1964) 1 SCR 897] at SCR p.910: “The objects to be taxed so long as they happen to be within the legislative competence of the legislature can be taxed by the legislature according to the exigencies of its needs, because there can be no doubt that the State is entitled to raise revenue by taxation. The quantum of tax levied by the taxing statute, the conditions subject to which it is levied, the manner in which it is sought to be recovered, are all matters within the competence of the legislature, and in dealing with the contention raised by a citizen that the taxing statute contravenes Article 19, courts would naturally be circumspect and cautious.” as such there cannot, in the present case, be any valid challenge to the rate of penalty [8] SB SALES TAX REVISION PETITION NO.147/2008 provided for in section 78(5) of the Act.” 14. The above discussions clearly prove that necessary document i.e. Form 18-A was not accompanied with the goods at the time of checking of the vehicle and the same was not even produced before the Assessing Officer along with reply to show cause notice, therefore, it is the case where there was total breach of Section 78(2) of the Act and penalty was attracted under Section 78(5) of the Act. Neither mens rea was necessary to be proved nor there was any discretion left with the Assessing Officer not to levy or levy lesser amount of penalty. The present case is fully covered by the judgment of the Hon'ble Apex Court in State of Rajasthan And Another Vs. D.P. Metals(supra). 15. Consequently, the revision petition is allowed. The impugned judgment passed by the Rajasthan Tax Board, Ajmer dated 19.10.2005 is set aside and order dated 02.06.1999 passed by the Assessing Officer, affirmed by the Deputy Commissioner(Appeals), is upheld. There will be no order as to costs. (NARENDRA KUMAR JAIN),J. /KKC/