TMI Blog2015 (9) TMI 1504X X X X Extracts X X X X X X X X Extracts X X X X ..... - - - Dated:- 29-9-2015 - RANKA J. K. J. ORDER Ms. Tanvi Sahai and Ms. Meenal Ghiya on behalf of RB Mathur for the petitioner. Raj Kumar Yadav for the respondent. J. K. RANKA J.- These sales tax revision petitions by the petitioner- Revenue are directed against the common order dated January 19, 2010 passed by the Rajasthan Tax Board, Ajmer (for short, the Tax Board ), by which the appeals filed by the petitioner-Revenue have been dismissed. Since the facts and controversy involved are almost similar, all these petitions are being disposed of by this common order. These relate to assessment years 2006-07 and 2007-08. Brief facts are that the respondent-assessee is manufacturing Sewai (vermicelli) macaroni and pasta with other products and paying tax at four per cent. on such goods. It is claimed that the respondent-assessee has registered office in Andhra Pradesh and a manufacturing unit in the State of Rajasthan. A survey operation was conducted on the premise of the respondent-assessee on October 24, 2007 and during the course of survey operation, the authorized officers found that the respondent-assessee is manufacturing and selling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cords and penalty was rightly levied by the AO and has been wrongly deleted by both the appellate authorities. She further contended that under section 65 of the old RST Act also, if the turnover or rate has been shown lower than the rate prescribed, penalty is certainly leviable in law. She further contended that classification entry was made in the year 1994 and continued and is in force till today and during all these years, the assessee being well aware, ignored the same and thus the penalty has rightly been levied. She relied upon the judgment rendered by the honourable apex court in the case of Union of India v. Dharamendra Textile Processors [2008] 18 VST 180 (SC); [2008] 306 ITR 277 (SC); [2008] 11 RC 556. Per contra, counsel for the respondent-assessee contended that it is a finding of fact recorded by the Tax Board and no question of law can be said to emerge out of the order of the Tax Board when both the appellate authorities have found as a finding of fact that the goods were duly entered in the books of accounts and no irregularity was noticed in the books of accounts and whatever the turnover was shown, even after survey, was accepted by the authorized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajasthan when admittedly the case falls under the Rajasthan Value Added Tax Act, 2003. Nevertheless, in my view, it is not a case where the Revenue claims that the assessee did not pay any tax or concealed the particulars of sales, rather there could be a bona fide error about classification of entry as to in which entry the goods do fall. In my view, merely because the rate of 12.5 per cent. may have been applicable on the items which were being manufactured/sold by the assessee and the assessee having shown four per cent., in my view, at least penalty under section 61 may not be leviable in the instant case and on the facts noticed. Even the authorities, i.e., DC (A) as well as the Tax Board have found as a finding of fact that the issue about the rate of tax was certainly debatable as claimed by the respondent-assessee before both the authorities. Even the DC (A) has found that even in other States the rate of tax lower than four per cent. is there or even in some of the States, the said items are exempt from tax and both the appellate authorities have gone on the analogy of common parlance test and in holding that Sewai (vermicelli) macaroni and pasta with other products ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable on the sale of goods by the assessee, i.e., 'Priyagold TM Toffito Mango Cream Toffee'. The dispute was therefore a bona fide one as to the interpretation/classification of the products sold by the assessee for the purpose of levy of tax. Such a dispute did not supply any of the pre-conditions for levy of penalty under section 61 of the 2003 Act. The Tax Board has, for the principle on which penalty can be levied, relied upon the judgment of the honourable Supreme Court in the case of Sree Krishna Electricals [2009] 23 VST 249 (SC); [2009] 11 SCC 687. Oddly the revision petition does not even have a whisper of a reason for the purported inapplicability of the aforesaid judgment to the matter in issue before the Tax Board. Quite apparently, the petitioning Revenue Department seeks to overlook the facts of the case and the clear enunciation of law by the honourable Supreme Court in the case of Sree Krishna Electricals [2009] 23 VST 249 (SC); [2009] 11 SCC 687 as also elsewhere and mechanically agitate this misdirected revision petition. The question of law as sought to be agitated stands already settled by the judgment of the honourable Supreme Court in the cases of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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