COMMISSIONER OF SALES TAX Vs. METALMAN (INDIA).

JUDGEMENT

(1.) THE applicants (Revenue) have filed this application under the provision of order 47, rule 1 of the Civil Procedure Code for review of the order dated April 7, 1998 passed by learned single judge in M. P. No. 1276 of 1989. Learned A.A.G. contends that though the judgment of a division Bench of this court in Western Coalfields Ltd. v. State of Madhya Pradesh [1997] 106 STC 406; [1996] MPLJ 439 by which section 7(5) of the M.P. Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 (for short, "the Adhiniyam") was set aside as ultra vires, had been reversed by the apex court in State of Madhya Pradesh v. Bharat Heavy Electricals [1997] 106 STC 604; [1997] 7 SCC 1, said decision of the Supreme Court having not been brought to the notice of the learned single judge, learned single judge proceeded on the division Bench decision of this court and allowed the petition of the respondent.

(2.) WE may at the outset point out that failure to cite a decision before the court cannot be made a ground for seeking review. Even on merits of the case, the Supreme Court has stated in BHEL's case [1997] 106 STC 604; [1997] 7 SCC 1, that it is a rebuttable presumption but the presumption has to be rebutted by the dealer concerned. The Supreme Court has also taken note of the fact that the counsel appearing for the State had frankly conceded that though section 7(5) of the Adhiniyam provided for penalty ten times the amount of evasion of tax, the authority was not bereft of its discretion to impose a lesser penalty depending upon the facts and circumstances of the case. Since in a given case on presumption being rebutted the penalty cannot be applied and it was within the discretion of the sales tax authority to impose penalty even less than ten times penalty provided, we see no justification in reviewing the impugned order. Accordingly this application for review is dismissed but with no order as to costs.