TaxTMI 
TaxTMI 
2013 (2) TMI 649
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....009, which upheld the order dated April 30, 2009 passed by the learned Deputy Commissioner (Appeals)-II (in short, "the DC (A)"), who had deleted the levy of penalty of Rs. 1,09,009 imposed by the learned Assistant Commercial Taxes Officer (in short, "the ACTO"), under section 78(5) of the said Act. The brief facts of the case as emerging on record are that the respondent had sent certain goods through a transport vehicle bearing No. HR-469929 from Delhi to Jaipur, containing therein iron rods, etc. On checking by ACTO, builty No. 2729 dated September 11, 2000, Invoice No. 5315 dated September 11, 2000 and text note of Tata Steels dated September 11, 2000 were found with the driver of the transport vehicle. However, with the aforesaid do....
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.... from carrying the form No. ST-18A on account of inadvertence for the reasons stated earlier and that all the other documents were made available to the satisfaction of ACTO and immediately on demand, form No. ST-18A was called for from Delhi office and submitted before the ACTO and argued that keeping in view, all the facts and circumstances of the case and also keeping in view, the bona fide mistake committed by the clerk for not handing over the form No. ST-18A to the driver of the vehicle the penalty should not be imposed. The respondent before DC (A) relied upon the judgment of the apex court rendered in the case of State of Rajasthan v. D.P. Metals [2001] 124 STC 611 (SC). The DC (A), accepted the bona fides of the respondent and not ....
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.... needed to be carried and since, the respondent had failed to make compliance of the requirement of carrying of the form No. ST-18A under the Act, therefore, the penalty had rightly been imposed against the respondent and the respondent has wrongly been exonerated from the penalty so imposed by the DC (A) and the Tax Board. I have considered the arguments advanced by the learned counsel appearing on behalf of the petitioner-Department and perused the material on record. I am in agreement with the order passed by the learned DC (A) and the learned Tax Board, for the reasons given in the order hereunder. Though the Act, provides that form No. ST-18A is very essential to be produced at the time of checking or otherwise at the time of carryi....
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....where, despite opportunity having been granted under section 78(5) if the requisite documents referred to in sub-clause (2)(a) are not produced, even though the same should exist, would clearly prove the guilty intent. It is not possible to agree with the counsel for the respondents that breach referred to in section 78(5) can be regarded as technical or venial. Once the ingredients of section 78(5) are established, after giving a hearing and complying with the principles of natural justice, there is no discretion not to levy or levy lesser amount of penalty. If by mistake some of the documents are not readily available at the time of checking, principles of natural justice may require some opportunity being given to produce the same. This ....
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....ugh the provisions of section 78(5) of the Act, have been held to be just, proper and valid but it is not automatic, the principles of natural justice, demand an opportunity to be given to rebut and if the documents are produced then the benefit of producing the documents ought to have been given to the assessee and no penalty should have been imposed. Therefore, the aforesaid judgment of the honourable apex court is squarely applicable in the facts and circumstances of the present case. This court in the case of Cera Tech India v. Assistant Commercial Taxes Officer, Bhiwadi [2013] 35 Tax-Up-Date 2, 49, considered this issue and held as under: "The honourable Supreme Court of India in case of D.P. Metals [2001] 124 STC 611 (SC), has c....