STATE OF RAJASTHAN Vs. KEDAR DAS SURENDRA KUMAR

JUDGEMENT

(1.) THIS special appeal by the State is directed against the order of the learned single Judge dated November 22, 2001. THIS order was modified by order dated March 18, 2002. Having perused both the orders we are satisfied that the special appeal deserves to be dismissed.

(2.) BRIEFLY stated the facts of the case are that the Assistant Commercial Taxes Officer, Anti-Evasion II. Rajasthan, Circle-I, Jaipur, intercepted the truck bearing No. RJ-19 G-2360 on September 25, 1999 and found that it was not carrying the requisite documents referred in sub-section (2) of section 78 of the Rajasthan Sales Tax Act, 1994. In view of this, notice under section 78 (5) of the Rajasthan Sales Tax Act, 1994 was given on October 26, 1999. On the same day, another notice was given under section 83 of the Rajasthan Sales Tax Act, 1994. The reply to show cause notice was given and the A. C. T. O. passed an order dated November 19, 1999 imposing penalty of Rs. 38,939 under the provision of section 78 (5) of the RST Act, 1994. The Assistant Commercial Taxes Officer assessed the value of the articles at the rate of Rs. 250 per kg. instead of Rs. 205. It appears that no order was passed with respect to the notice under section 83 of the RST Act, 1994. As far as, the levy of penalty under section 78 (5) of the RST Act, 1994 is concerned, it is not in dispute that respondent-writ petitioner has preferred appeal and the same is pending before the Deputy Commissioner (Appeals), Department of Commercial Taxes.

(3.) BEFORE parting, we may observe that the Assistant Commercial Taxes Officer was careless rather carefree in not giving due attention to the proceedings of section 83 of the RST Act, 1994 after having chosen to give notice under sub-clause (1) of section 83, RST Act, 1994 on account of which the dealer as well as the State has suffered. It will be open for the State to recover the amount to the tune which it has suffered from the Assistant Commercial Taxes Officer who has given the notice under section 83 (1) of the RST Act, 1994. We are surprised that while the department is at fault, it has chosen to prefer appeal against a just order.