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Assistant Commercial Tax Officer, Ward-II, Circle-D, Jodhpur Versus M/s Nahar Granite P. Ltd., Jodhpur

Penalty u/s 78 of the RST Act - Upon checking of goods viz. zink ingots on the ground that ST-18A Form was not accompanying the goods in transit - Held that:- The position of law with regard to the imposition of penalty under Section 78 (5) of the Act is that there is no requirement in law for Revenue to establish mens rea on the part of assessee in these penalty proceedings under Section 78 (5) of the Act, has been settled by the catena of judgments of the Hon'ble Supreme Court and has been rei .....

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d 16.07.2007 had rejected the appeal of the Revenue and upheld the deletion of penalty under Section 78 (5) of the RST Act upon checking of goods viz. zink ingots on the ground that ST-18A Form was not accompanying the goods in transit, and thus upheld the order dated 07.07.2006, setting aside such penalty. The relevant findings of the Tax Board in the order impugned is quoted herein below: - 2. Briefly stated, the facts of the case are that on 02.10.2005, a goods vehicle number RJ-04-G-3367 was .....

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cond appeal preferred by the petitioner Revenue also came to be dismissed by the learned Tax Board vide order dated 16.07.2007. 3. The petitioner- Revenue has filed the present revision petition in this Court aggrieved by the said order of Tax Board. 4. The position of law with regard to the imposition of penalty under Section 78 (5) of the Act is that there is no requirement in law for Revenue to establish mens rea on the part of assessee in these penalty proceedings under Section 78 (5) of the .....

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es not attract levy of penalty under sub-section (5) of Section 78 of the RST Act, 1994. In such case, an opportunity is to be given under Rule 55 (1) of the RST Rules, 1995, to a person, to produce the required documents and/or declaration forms completed in all respects, when the goods enters or leaves the nearest check-post of the State. It is only when a person despite giving such an opportunity, is not able to produce the document and/or declaration forms completed in all respects, when the .....

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d have been clarified by the Hon'ble Supreme Court in Guljag Industries v. Commercial Taxes Officer (supra), in which it has been clearly held in para 30, after quoting the provisions of Section 78, that; In the present case also the statute provides for a hearing. However, that hearing is only to find out whether the assessee has contravened Section 78 (2) and not to find out evasion of tax which function is assigned not to the officer at the check-post but to the AO in assessment proceedin .....

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