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TMI Blog2013 (2) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... f the vehicle was required to produce necessary bills, vouchers declaration forms and he produced GR No.111843, 111844 dt. 31/05/1000 and alongwith these bilties, he also produced invoice No.271 dt. 31/05/1999, 273 dt. 31/05/1999 and challan of Globe Transport Corporation bearing No.14421 dt.04/06/1999. The goods, i.e. 144 bundles of iron springs and 25 bundles of axles, were being sent from Khanna (Punjab) to Sarkhej (Gujarat) and on enquiry, it was conveyed by the driver (Prahlad) that he does not have permit of Gujarat. On further checking, the officers found GR No.016232 dt. 01/06/1999; challan No.14420 dt. 04/06/1999; GR No.011698, 026103 dt.27/05/1999; 026107 dt.02/06/1999 of M/s. Globe Transport Company Pvt. Ltd. (from UP Border to Bhilwara, Raj.) and it was mentioned as "self". The officers also found challan No.4 dt. 04/06/1999 from UP Border to Bhilwara and on this challan vehicle No.RJ-14-G-7421 was written and it mentioned name of National Auto Store, 82, Transport Nagar, Bhilwara. In this challan, three bilties were recorded wherein it was mentioned about 20 articles of Hardware, 4 articles of motor parts, 25 bundles of axles and 144 bundles of iron springs. Finding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition of penalty on the respondent-assessee (transporter) is wholly unjustified. It was further claimed before the DC(A) that the CTO did not make further independent verification and merely on assumptions and presumptions, held the bills were bogus and merely on the basis of alleged statement of the driver, the penalty has been imposed which is unjust & in violation of principles of natural justice as well. The DC(A) was satisfied with the facts pleaded before it and after considering the authorities, referred to by the respondent-assessee, deleted the penalty. Dissatisfied with the deletion of the said penalty, an appeal was preferred before the Tax Board by the petitioner-department, assailing the deletion of the penalty. The Tax Board, after hearing detailed arguments; referring to the submissions at length and after considering the authorities, sustained the deletion of penalty by the DC(A). Being not satisfied with the deletion of penalty, the petitioner-department has filed instant revision petition. Mr.RB Mathur, learned counsel for the petitioner-department submitted that despite of several discrepancies noticed by the CTO i.e. the driver having not stopped at the chec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of noticing certain deficiencies/errors, one cannot be held to be guilty and the CTO was not justified in imposing penalty. Had he interacted with the purchaser(s) as well as seller and had there been any other discrepancy, after interaction, he could certainly come to the conclusion of imposition of penalty. As regards not stopping the vehicle, drivers as they are, being not educated, it might be possible that the driver of the vehicle would have got terrorized upon trying to stop the vehicle or chasing it by the Flying Squad and upon putting indifferent questions. So, the proper course, available with the CTO, was to make proper enquiry from the persons concerned (purchasers/sellers) and merely on the basis of the statement of a poor driver and noticing certain discrepancies, without holding further enquiry in the matter from the concerned persons, the penalty could not have been imposed. It is found as a fact that though two sets of bills, receipts, vouchers were found with the driver of the vehicle but they have been found to be proper/original and no other objection stands noticed by the assessing officer except that why two sets of papers were found and that the vehicle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of such provisions." "In this view of the matter Section 22A, RST Act not being applicable, confined as it is to the checking of evasion of tax under the RST Act in Rajasthan, the question of imposing penalty under section 22A(7)RST Act in cases of goods transiting through Rajasthan cannot arise. The sales tax authorities of Rajasthan can, of course, stop and check any vehicle but if it contains goods coming from another State and bound for another State they can only insist and ensure that the goods leave Rajasthan." This Court in the case of ACTO, FS, Bharatpur Vs. M/s S Vrindavan Oil Products, Bharatpur, reported in (2006) Tax Up-Date (Vol.15 Part 3 June 1-15-2006), 109, has held as under:- "This court has consistently held that it is incumbent upon the Assessing Authority in the penalty proceedings under Sec.78(5) of the Act to undertake said exercise of cross-examination of driver or any other representative of the firm before imposition of penalty on the consignor or consignee of the goods, otherwise it is hazardous and unsafe to rely upon such confessional statement. Nobody would normally give such confessional or suicidal statement of tax evasion and more so the drive ..... X X X X Extracts X X X X X X X X Extracts X X X X
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