TMI Blog1983 (11) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... sing authority, 30 per cent tax collected by the assessee was taken to be the rate of tax and the assessment was completed on that basis. However, from 30th September, 1977, the assessee collected tax at 8 per cent on the sale of arishtam treating the arishtam sold by them as drugs, which is taxable at 8 per cent under the provisions of the Act. Later, in the assessee's own case, the Tribunal in T.A. No. 382 of 1978, held that the articles sold as arishtam by the assessee are not arishtams prepared in accordance with the ayurvedic formula, and therefore, the articles should be treated as cheap intoxicant, and therefore, it should be taxed only at 4 per cent multi-point. This decision was rendered by the Tribunal on 31st July, 1978. Then onw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te has come before us by way of this revision petition. 2.. According to the Revenue, the order of the Tribunal in holding that there was no mens rea or guilty mind when the assessee collected the excess tax as the excess collection was made under a bona fide mistake, the levy of penalty under section 22(2) of the Act cannot legally be sustained has to be set aside. The learned counsel for the Revenue referred to certain decisions of this Court and of the Supreme Court in support of his submission that the question of mens rea or guilty mind is irrelevant for the application of section 22(2) of the Act, that the said section can be invoked even if the tax has been collected in excess under a bona fide mistake and that in this case, since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , subsequently the assessee has been contending that the tax payable on the arishtam sold by him is at 4 per cent multi-point and this was disputed by the assessing authority and the assessee had to ultimately go before the Tribunal and get a decision in his favour holding that the arishtam sold by him being cheap intoxicant is taxable only at 4 per cent. The said decision of the Tribunal has led to become final by the State. Therefore, the correct rate applicable to the assessee's goods can only be taken at 4 per cent. That the correct rate of tax applicable to the assessee's goods is only 4 per cent was known to both the parties only after the Tribunal rendered its decision in the assessee's own case in T.A. No. 382 of 1978. Originally, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the mens rea, set aside the penalty on the ground that the assessee alone was not responsible for the collection of the higher rate of tax, but the assessing authority was also responsible for the assessee collecting higher rate of tax. For the same reasons, we have to hold in this case that the assessee's collection at the higher rate of tax is due to the mutual mistake, and therefore, section 22(2) cannot be invoked for the purpose of levying penalty. In this view of the matter we are inclined, though for different reasons, to agree with the order of the Tribunal. Hence, the tax revision is dismissed. There is no order as to costs. 5.. Coming to the writ petitions, referred to above, we find that they have been filed by way of abun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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