JUDGMENT 1. - This revision petition has been filed by the petitioner Assistant Commercial Taxes Officer against judgment and order dated 2.4.2002 (Annex.4) passed by the Rajasthan Tax Board, Ajmer in Appeal No. 626/2000 by which the learned Tax Board allowed the second appeal filed by the respondent and set aside the order dated 24.5.2000 (Annex.3) passed by the Deputy Commissioner (Appeals), Jodhpur as well as penalty order dated 7.11.1996 (Annex.2) passed by the Assistant Commercial Taxes Officer (Anti Evasion-III), Jodhpur (hereinafter referred to as the Assessing Authority) whereby the learned Assessing Authority imposed penalty of Rs. 10784/- against the respondent. 2. It arises in the following circumstances:- On 12.10.1996, the vehicle in question, which was carrying 6 cases of sanitary goods belonging to the respondent M/s. Aryan Pipe Traders, was intercepted and checked by the petitioner-Assistant Commercial Taxes Officer and during checking, it was found that the Declaration Form ST-18A was not accompanied with the goods. Since the goods in transit were not accompanied with the Declaration Form ST-18A, 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 read with Rule 53 of the Rajasthan Sales Tax Rules, 1995 (hereinafter referred to as "the Rules of 1995") was issued by the Assessing Authority to the respondent-dealer as to why penalty be not imposed. A reply dated 30.10.96 (Annex.1) to the said show cause notice was filed by the respondent stating inter-alia that all papers were available at the time when the checking was made by the petitioner Assistant Commercial Taxes Officer and it was further submitted by the respondent that since the goods were not notified goods, therefore, Declaration Form ST-18A was not required. After examining the matter, the Assessing Authority came to the conclusion that the goods, which were being carried i.e. pipe fittings are sanitary goods included in the list of goods on which declaration form No. 18A is required, which was issued by the State Government through Notification No. F.4(1)FD/Tax.Div./2000-298 dated March 30th, 2000 and therefore, declaration form ST-18A was necessary and since it was not accompanied with the goods, therefore, the respondent was guilty of violating the provisions of Section 78(2) of the Act of 1994 read with Rule 53 of the Rules of 1955 and consequently, the Assessing Authority through order dated 7.11.1996 (Annex.2) imposed the penalty of Rs. 10784/- on the respondent-dealer. Aggrieved from the said order dated 7.11.1996 (Annex.2), the respondent-dealer preferred an appeal before the Deputy Commissioner (Appeals), Commercial Taxes, Jodhpur under Section 84 of the Act of 1994 and through judgment dated 24.5.2000 (Annex.3), the Deputy Commissioner (Appeals) dismissed the appeal of the respondent and affirmed the order of the Assessing Authority dated 7.11.1996 (Annex.2) holding inter-alia that goods in question were notified goods and therefore, declaration form ST-18A was required. Aggrieved from the said judgment dated 24.5.2000 (Annex.3) and order dated 7.11.1996 (Annex.2), the respondent preferred second appeal before the Rajasthan Tax Board, Ajmer and the Rajasthan Tax Board, Ajmer through impugned judgment dated 2.4.2002 as rectified on 3.5.2002 (Annx.4) allowed the appeal of the respondent and set aside the findings recorded by the learned First Appellate Authority through judgment dated 24.5,2000 (Annex.3) and the findings of the learned Assessing Authority through order dated 7.11.96 (Annex.2). The Rajasthan Tax Board further came to the conclusion since there was no mens rea on the part of the respondent to evade tax, therefore, penalty imposed on the respondent could not be sustained. Aggrieved from the said judgment dated 2.4.2002 (Annex.4) passed by the Rajasthan Tax Board, the petitioner has filed this revision petition. 3. In this revision, two submissions have been raised by the learned counsel for the petitioner:- (i) That the goods in question are included in the notified goods as per the list of goods on which declaration form No. 18A is required, which was issued by the State Government through Notification No. F.4(1)FD/Tax.Div/2000-298 dated March 30th, 2000 and therefore, the findings of the learned Tax Board in this respect cannot be sustained and are liable to be set aside. (ii) That when it is found that the goods in question were notified goods, accompanying of Declaration Form ST-18A with the goods was necessary and since it was not accompanied with the goods, therefore, if the Assessing Authority had imposed penalty on the respondent, it had committed no mistake in doing so and furthermore, since goods were not accompanied with the Declaration Form ST-18A, mens rea on the part of the respondent should have been treated as established. Hence, it was prayed this revision petition be allowed and the impugned judgment of the learned Tax Board be quashed and set aside and the order of the Assessing Authority be restored. 4. On the contrary, the learned counsel appearing for the respondent has submitted that since the goods in question were not notified goods, therefore, it was not necessary to accompany the Declaration Form ST-18A with the goods and apart from this, at the time of checking, all other documents and papers were found valid and correct and there was no mens rea on the part of the respondent to evade tax and in absence of any mens rea to evade tax, imposition of penalty was bad in law and the same was rightly set aside by the lower appellate authorities and in this respect, he has placed reliance in M/s. Parasnath Granite India Ltd. v. Sate of Raj. & Anr. (2004) 9 Tax Up-date 125 . 5. I have heard the learned counsel for the petitioner and the learned counsel for the respondent and gone through the entire materials available on record. 6. There is no dispute on the point that on 12.10.1996 when the vehicle in question carrying the goods in question of the respondent was checked by the petitioner, the Declaration Form ST-18A was not found. However, rest papers were found valid and correct.POINT NO.1 7. The case of the petitioner is that the goods in question were notified goods and therefore, accompanying of Declaration Form ST-18A was necessary. 8. On the other hand, the case of the respondent is that the goods in question were not notified goods and therefore, Declaration Form ST-18A was not required. 9. In my considered opinion, the above findings of the learned Tax Board on point No. 1 cannot be accepted. 10. 8. On the other hand, the case of the respondent is that the goods in question were not notified goods and therefore, Declaration Form ST-18A was not required. 9. In my considered opinion, the above findings of the learned Tax Board on point No. 1 cannot be accepted. 10. In the list of goods, on which Declaration Form No. 18A was required, which was issued by the State Government through Notification No. F.4(1)FDITax.Div./2000-298 dated March 30th, 2000, "all types of sanitary goods including sanitary pipes and fittings" have been included at Serial No. 7 which reads as follows:- "7. All types of sanitary goods including sanitary pipes and fittings." 11. The above definition is exhaustive one and includes sanitary pipes and fittings and therefore, the argument of respondent that the goods in question i.e. sanitary pipes and fittings were not notified goods cannot be accepted and it is held that the goods in question, i.e. sanitary pipes and fittings, which were being carried in the vehicle in question on 12.10.1996 were notified goods and for that, Declaration Form ST-18A was necessary.Point No. 2 12. On point No. 2, the case of the petitioner is that since Declaration Form ST-18A was not accompanied with the goods, therefore, there was mens rea on the part of the respondent to evade tax. 13. On the other hand, the case of the respondent is that at the time of checking when all other documents and papers were found valid and correct and Declaration Form ST-18A was not accompanied with the goods on the bonafide belief that it was not required as they were not notified goods and therefore, mens rea or malafide intention on the part of the respondent to evade tax should not be inferred in view of above circumstances. 14. The Rajasthan Tax Board came to the conclusion that penalty imposed without establishing any mens rea on the part of the respondent was not in accordance with law. 15. Before proceeding further, something should be said on mens rea.On Mens rea 16. 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. 17. 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. 17. The words 'mens rea' do 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. 18. The fundamental principle pertaining to mens rea is based on the maxim actus non facit reum nisi mens sit rea (the intent and act must both concur to constitute the crime). Meaning thereby an act does not make a man guilty without guilty intention to do the guilty act which is made penal by the statute or common law. 19. This Court in Assistant Commercial Taxes Officer v. Rajasthan Taxation Tribunal and Anr. (2001) 123 ST 172 has observed that existence of mens rea on the part of dealer committing breach for avoidance or evasion of payment of tax is sine qua non for levying penalty for such breach which otherwise is of technical nature. 20. Thus, it can be concluded that mens rea is an essential ingredient for imposing penalty under Section 78(5) of the Act of 1994 for violating the provisions of Section 78(2) of the Act of 1994. Furthermore, a difference can be made in respect of intentional contravention of any provision or breach of any provision technically without mens rea. It is made clear that contravention of any provision, which is not accompanied by mens rea, may be treated as technical one and for that breach, provisions of penalty clauses embodided in Section 78(5) of the Act of 1994 cannot be attracted automatically. Further, every contravention cannot entail penalty clause as provided in Section 78(5) of the Act of 1994. 21. Further, every contravention cannot entail penalty clause as provided in Section 78(5) of the Act of 1994. 21. The Division Bench of this Court in the case of M/s. Parasnath Granite India Limited (supra) has reiterated the same view on mens rea and in that case, the Division Bench over-ruled the two Single Bench judgments of this Court in Mutha Pram Raj v. ACTO (2002) Tax Update vol.3 page 51 and ACTO v. Shiv Shambhu (2003) Tax Update Vol. 7 Part IV page 136 whereby contrary view was taken. 22. Similar view has been taken by this Court in Assistant Commercial Taxes Office v. M/s. Agarwal Steel Industries, Jaipur S.B. Sales Tax Revision No. 1108/2002 decided on 29.7.2004 . 23. In the present case, from the materials available on record, it appears that no doubt at the time when the checking was made, the Declaration Form ST-18A was not accompanied with the goods, but it was not accompanied with the goods only because the respondent thought that it was not necessary as the goods were not notified goods and further, since other papers were found genuine, valid and correct one, therefore, in these circumstances, no malafide intention or mens rea on the part of the respondent-dealer for avoidance or evasion of payment of tax can be inferred or gathered. Therefore, the findings of the Rajasthan Tax Board that there was no mens rea or malafide intention on the part of the respondent to evade tax and thus, penalty imposed without establishing any mens rea on the part of the respondent was not in accordance with law, cannot be said to be erroneous or perverse one and further, they do not suffer from any basic illegality or infirmity. Hence, no interference is called for with the same. 24. For the reasons stated above, no substantial question of law arises in this revision petition and there is no force in this revision petition and the same deserves to be dismissed.Accordingly, this revision petition filed by the petitioner Assistant Commercial Taxes Officer is dismissed. No order as to costs.Revision Dismissed. *******