ASSISTANT COMMERCIAL TAXES OFFICER Vs. KANOI DAL MILL

JUDGEMENT

(1.) THIS revision petition has been filed by the petitioner - Assistant Commercial Taxes Officer against judgment and order dated March 24, 2003 (annexure 3) passed by the Rajasthan Tax Board, Ajmer, in Appeal No. 874/2002 by which the appeal of the petitioner was dismissed.

(2.) IT arises in the following circumstances : On February 8, 2000, the vehicle No. RJ-32/g-0945 belonging to the respondent-firm, which was carrying goods (130 bags of dall), was intercepted and checked by the petitioner - Assistant Commercial Taxes Officer on Udaipur-Ahmedabad route near Ratanpur (Dungarpur) and during checking, it was found that the declaration form ST-18c was not accompanied with the goods. Since the goods in transit were not accompanied with declaration form ST-18c, therefore, a notice under section 78 (5) of the Rajasthan Sales Tax Act, 1994 (hereinafter referred to as "the Act of 1994") for violation of the provisions of section 78 (2) of the Act of 1994 was issued by the assessing authority to the respondent-dealer as to why penalty be not imposed. A reply to the said show cause notice was filed by the respondent on February 12, 2000 stating, inter alia, that all papers were available at the time when the checking was made by the petitioner - Assistant Commercial Taxes Officer, but because of some negligence, the declaration form ST-18c could not be accompanied with the goods, though it was also filled-in-up. IT was further alleged by the respondent that he had no mala fide intention and along with the reply, the declaration form ST-18c was filed by the respondent.

(3.) IN my considered opinion, mere contravention of provisions of section 78 (2) of the Act of 1994 cannot authorise the assessing authority to impose penalty under section 78 (5) of the Act of 1994 unless there is a mens rea on the part of the trader. Apart from this, mens rea is an essential ingredient for imposing penalty. The word "mens rea" does not bear a literal meaning (i. e. , "bad mind" or guilty mind) because one who breaks the law even with the best of motives still commits a crime. The language is no longer meant to convey the idea of general malevolence characteristic of early common-law usage. The true translation is criminal intention or recklessness. Words typically imposing a mens rea requirement include wilfully, maliciously, fraudulently, recklessly, negligently, corruptly, feloniously and wantonly.