JUDGMENT
Vineet Kothari, J.
1. Heard learned Counsel at admission stage.
2. The penalty Under Section 78(5) of the Act was imposed on the assessee on the ground that at the time of checking of vehicle on 7.9.01, the documents produced showed that bill No. 155 dated 29.9.2000 of M/s. Georg Fischer Disa Limited, Satyamangala Industrial Area, Tumkur, Karnataka raised on the respondent- assessee M/s. Amtek India Ltd., Bhiwadi along with delivery challan No. 5259 dated 3.9.01, form No. ST-18A in which invoice No. 155 was also mentioned and form No, ST-39 prescribed under Karnataka Sales Tax Act and bilty of North-Eastern Carrying Corporation accompanying the said goods were produced for verification. However date of the said invoice No. 155 dated 16.2.2000, was held to be of at earlier point of time than the date mentioned in the delivery challan of 3.9.01, therefore, the Assessing Authority held that said document was doubtful and, therefore, there was no compliance of Section 78(2)(a) of the RST Act, 1994 and imposed the penalty of Rs. 1,36,200/- (a 30% of value of goods on the respondent-assessee, the consignee or purchaser.
3. The explanation given by the assessee before the Assessing Authority that what documents of contemporary period were genuine and because the site of consignee assessee was not ready for the manufacture of goods by Sept. 2001, therefore, the plant and machinery and equipments purchased by respondent-assessee from the consignor though purchased under invoice No. 155 dated 16.2.2000 in which due excise duty and CST (4% against C Form was charged by the seller, but the goods were consigned and received-under the said invoice after the lapse of about one year but that cannot mean that invoice raised by seller company was not genuine and, therefore, the penalty was not justified.
4. Both the Appellate Authorities or fact finding bodies i.e. D.C. (Appeals) as well as Tax Board found the said explanation of assessee satisfactory and correct and, therefore, set aside the penalty Under Section 78(5) of the Act. The revenue is in revision before this court Under Section 86 of the Act on supposed question of law arising in the matter though as a matter of fact none arises.
5. One fails to understand how learned CTO without holding any inquiry into these documents produced by assessee/driver of the vehicle at the time of checking, the invoice of prior date could not perse be treated as non-genuine or forged document. This court summoned the record of the case and perused the original record. The documents including the declaration issued by Sales Tax Authorities of both the states clearly establish that transit and transaction was perfectly genuine and there was absolutely no reason for Assessing Authority to just go by fidget of his imagination that merely because the invoice bears the date prior in point of time, such document should be held to be non-genuine so as to attract heavy penalty of 30% of the value of goods Under Section 78(5) of the Act. Such flimsy and unjustified stand on the part of authorities of sales tax department seriously impede and jeopardize the free flow of trade in the country which is the constitutional guarantee under Article 19(1)(d) of the Constitution of India. The course left open to the assessee after imposition of such illegal penalties is nothing but to approach the higher appellate forums and more often than not litigation travels upto this court and Hon’ble Supreme Court and in the entire process, it is only the assessee who suffers, but the authority of the department who imposes such penalty on flimsy grounds is not held accountable at all despite causing all such litigation, loss of productive man hours and money.
6. It is indeed unfortunate that such authorities go scot free taking shelter of good faith clause whereas in fact they have not acted in good faith at all while imposing such penalty. Such a provision is contained in Section 91 of the RST Act, 1994 which says that no suit, prosecution or other legal proceedings shall He against any officer or employee of the State Government for anything which is done or intended to be done under this Act or Rules made thereunder in ‘good faith’. However, if such good faith is ex-facie not maintained and not shown by the authorities in the orders, it would be unjustified, in the opinion of this court, to extend this protection to such erring officers.
7. The present case is a glaring example of illegal imposition of heavy penalty inspite of the fact that all the relevant documents prescribed under the law duly accompanied the goods in vehicle and were produced at the time of checking and, therefore, there was absolutely no non-compliance with the provisions of Section 78(2) of the Act.
8. Consequently, this revision petition is dismissed with cost of Rs. 5,000/- which will be borne personally and paid by the C.T.O., Anti Evasion, Bharatpur who passed the said order on 14.9.2001. Copy of this order be sent to the respondent-assessee as well as CTO, Anti Evasion, Bharatpur and Commissioner, Commercial Taxes Department, Jaipur for needful compliance.