GAURAV TRADING COMPANY Vs. ASSISTANT COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) Heard the counsel for the petitioner-firm and the respondent-Department. The following questions of law are made out in this revision petition:

(2.) The case of the petitioner-firm is that even though the Deputy Commissioner (Appeals), Commercial Tax Department, Bharatpur vide order dated 23.01.2007 had set aside the imposition of penalty on the petitioner-firm under Section 76(6) of the Rajasthan Value Added Tax Act, 2003 (hereinafter 'RVAT Act, 2003'), the learned Tax Board vide its order dated 24.08.2009 has upset ex-parte the said finding and revived the order of penalty visited upon the petitioner-firm by the assessing authority under the order dated 21.08.2006. Counsel for the petitioner-firm has submitted that in the proceedings before the Tax Board, the petitioner-firm was not served and therefore not represented. It is submitted that the issue with regard to levy of penalty on the petitioner-firm is founded upon a purported misdeclaration/misstatement in the documents accompanying the goods while they were in-transit from Madhya Pradesh to Rajasthan on 19.08.2006 and the case of the respondent-Department is that Sulphur sugar is sugar simpliciter and not the same Khandsari sugar. Counsel has submitted that this view of the respondent-Department is wholly without foundation inasmuch as other than sugar manufactured by the vacuum process other kind of sugar otherwise partake the character of Khandsari sugar and consequently, there was no declaration in the documents accompanying the goods in transit as alleged by the Department. It is submitted that in the event the petitioner-firm had the opportunity of appearing before the Tax Board in the revenue's appeal against the appellate order dated 23.01.2007 exculpatory of any wrong doing or illegality by the assessee, the correct legal and factual position would have been brought to the notice of the Tax Board. It is further submitted that subsequent to the receipt of goods in issue tax thereon has been paid on their further sale in the state of Rajasthan. It was finally submitted that even otherwise, the order dated 24.08.2009, passed by the Tax Board is an excess of Board jurisdiction inasmuch as the Board has taken into consideration extraneous matters not relevant to penalty proceedings under Section 76(6) of RVAT Act, 2003 while setting aside the order dated 23.01.2007, passed by the Deputy Commissioner.

(3.) A reply to the revision petition has been filed. Perusal of para 5 of the reply to the revision petition indicates that the averments in the revision petition with regard to the order dated 24.08.2009 being passed by the Tax Board without due service have not been denied.