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TMI Blog1997 (3) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... , was recorded as both the consignor and the consignee. Since the goods, namely, ten air-conditioners were notified goods under section 22C of the Act they were to be accompanied, inter alia, by form S.T. 18A as required under rule 62A(3) of the Rajasthan Sales Tax Rules, 1955 (hereinafter referred to as the Rules). The driver Shri Kuldeep Singh produced documents including a form S.T. 18A bearing No. 486931, but on closer examination it was found that it was a photostat copy of its original which the respondent had already used as far back as May 16, 1988 for the import of 15 compressors and five room coolers on its basis. A notice was served upon the respondent to explain away this lapse. On May 28, 1989 the assessing authority imposed a penalty of Rs. 51,000 taking the value of the goods at Rs. 1,70,000. The respondent preferred an appeal against it before the Deputy Commissioner (Appeals), Jaipur, who vide his order dated August 31, 1990 reduced the amount of penalty to Rs. 15,000. None of the parties was satisfied with the decision of the first appellate authority. Both the parties filed appeals before the Tax Board which vide its impugned judgment dated September 14, 1993 se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (7) and section 22C of the Act and the sub-rule (3) of rule 62A of the Rules. This question is to be answered in the negative for the reasons to be stated here. In the first place, it is only the document in original which is required to be produced. Such a document is to be obtained from the department by the dealer concerned. He uses it as and when he imports or brings the goods in the State. It is on the basis of this document that the goods are imported or brought into the State. The Act or Rules do not permit the dealer or the person concerned to import or bring the goods without this document form S.T. 18A. In the second place, when a particular provision has been made and procedure been prescribed it must be followed not only in the letter but also in the spirit. Lastly if we take a view that photostat copy of this document can be produced then the document can be misused and nobody would like to obtain form S.T. 18A because once a form is obtained, the photostat copies thereof may be made. It will be a field day for manipulation at the hands of unscrupulous persons, traders and dealers. In the present case the document in the original was used by the respondent as far ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dship Kailasam, J., at page 528 of the decision in Joshi, Sales Tax Officer v. Ajit Mills Limited [1977] 40 STC 497 (SC) held as hereunder: Mr. Kaji next submitted that forfeiture if it is to be penalty would be confined to acts where there is a guilty mind. In other words, he submitted that the penalty would be confined only to wilful acts of omission and commission in contravention of the provisions of the enactment. This plea cannot be accepted as penal consequences can be visited on acts which are committed with or without a guilty mind. For proper enforcement of various provisions of law it is common knowledge that absolute liability is imposed and acts without mens rea are made punishable. 9.. Shri Sharma contends before us that there was no seizure of goods under section 22A(5) of the Act. What he contends is that the seizure of goods is a condition precedent to the imposition of penalty under section 22A(7) of the Act. This contention appears to be rootless. In the first place, we have looked up form S.T. 2 prepared under rule 61(2) of the Rules. It has been clearly mentioned at S. No. 4(k) that 10 air-conditioners were seized on May 27, 1989. It bears the signatures o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances we cannot but uphold the order of the assessing authority. 12.. To conclude, we accept the revision petitions and set aside the decisions dated August 31, 1990 and September 14, 1993 of the Deputy Commissioner (Appeals) and Tax Board respectively. We restore the order dated May 28, 1989 of the assessing authority. We make no orders as to costs. Milap Chandra Jain, J. (Chairman).-I find it difficult to agree with the views expressed by the honourable Judicial Member and the honourable Technical Member. 14.. The Deputy Commissioner (Appeals) II, Jaipur and the Rajasthan Sales Tax Tribunal, Ajmer, have consistently held that the assessee-respondent did not act with mala fide intention in furnishing a photostat copy of the form 18A. This is a finding of fact. In Commercial Taxes Officer, Bharatpur v. K.O. Industries and Oil Mills [1987] 65 STC 174 (Rajasthan High Court, it has been observed at page 176 as follows: In Hindustan Steel Ltd. v. State of Orissa [1970] 25 STC 211 (SC) it was observed by their Lordships of the Supreme Court that if the assessee accepted the error committed under a misapprehension or genuine belief and discretion was exercised by the ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment or penalty- (i) confirm, reduce, enhance or annul the assessment or penalty; or (ii) set aside the assessment or penalty and direct the assessing authority to pass a fresh order after such further inquiry as may be directed. (b) in the case of any other order, confirm, cancel or vary such order. 19.. Second appeal lay to the Rajasthan Sales Tax Tribunal, Ajmer, against an order passed by the Deputy Commissioner (Appeals) disposing of an appeal against an order imposing a penalty. Section 14B(1) of the Act provided The Tribunal shall, after giving both the parties to the appeal an opportunity of being heard, pass such order thereon as it thinks fit . As such the Tribunal was empowered to set aside the order of penalty or to reduce the amount of penalty. Previously, the High Court did not and now this Tribunal does not interfere in the amount of penalty on the ground that it did/does not involve any question of law. 20.. The Deputy Commissioner (Appeals) was perfectly justified to reduce the amount of penalty after recording the finding that there was no mala fide intention on the part of the assessee-respondent in furnishing a photostat copy of the form S.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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