JUDGMENT NARENDRA KUMAR JAIN :- Heard learned counsel for the parties. Briefly stated the facts of the case are that on August 17, 2001, vehicle No. RJ14-1G-3900 was checked. Looking to the nature of goods and transaction, it was found that the declaration form ST 18C should have been accompanied with the goods, but the same was not accompanied along with other documents. Therefore, the assessing officer issued a notice to show cause to levy penalty under section 78(5) of the Rajasthan Sales Tax Act, 1994. The assessee submitted his reply and contended that he was not aware that the declaration form ST 18C should have been accompanied with other documents. Therefore, the same was not given. However, declaration form ST 18C was submitted before the assessing officer along with reply to show-cause notice. Since the assessing officer was of the view that the declaration form ST 18C was not accompanied with the goods at the time of checking of goods, therefore, there is a breach of section 78(2) of the Act and consequently, he levied penalty under section 78(5) of the Act. Being aggrieved with the same, an appeal was preferred. The Deputy Commissioner (Appeals) allowed the appeal of the assessee vide order dated September 28, 2005 on two grounds; first, that the order under section 78(5) of the Act could not have been passed against "owner of the goods" and second, that the declaration form ST 18C had already been submitted before the assessing officer along with reply to show-cause notice by the assessee. Being aggrieved with the order of the Deputy Commissioner (Appeals), the Assistant Commercial Taxes Officer filed an appeal before the Rajasthan Tax Board. The Tax Board vide its order dated March 23, 2007 dismissed the appeal only on one ground that since the vehicle was checked before March 22, 2002, the date when section 78(5) was amended, therefore, penalty order could not have been passed against the owner of the goods. The said order of the Tax Board is under challenge in this revision petition. The said order of the Tax Board is under challenge in this revision petition. Submission of the learned counsel for the petitioner is that reason assigned by the Tax Board for dismissing the appeal of the Revenue is contrary to the judgment of the honourable apex court rendered in Assistant Commercial Taxes Officer v. Bajaj Electricals Ltd. [2008] 18 VST 436; [2009] 1 SCC 308 and present case is fully covered by the aforesaid decision of the apex court, therefore, the impugned order of Tax Board be set aside. The learned counsel for the assessee contended that the order of the assessing authority was set aside by the Deputy Commissioner (Appeals) on two grounds; first is that the order of penalty could not have been passed against owner of the goods and second, is that the declaration form ST 18C had already been submitted before the assessing authority along with reply to show-cause notice. The Tax Board did not consider the second ground for setting aside the penalty order, i.e., the declaration form ST 18C had already been filed along with reply to show-cause notice by the assessee before the assessing authority and the said issue is already settled by the honourable apex court in State of Rajasthan v. D.P. Metals [2001] 124 STC 611; [2002] 1 SCC 279. Therefore, even if reason assigned by the Tax Board for dismissing the appeal of revenue is covered by Assistant Commercial Taxes Officer v. Bajaj Electricals Ltd. [2008] 18 VST 436 (SC); [2009] 1 SCC 308 then the present revision of Revenue is liable to be dismissed being covered by the decision of the apex court in State of Rajasthan v. D.P. Metals [2001] 124 STC 611; [2002] 1 SCC 279. I have considered the submissions of learned counsel for both the parties and examined the orders passed by the Assessing Officer, Deputy Commissioner (Appeals) and Tax Board minutely and I find that although the Tax Board committed an illegality in dismissing the appeal of the Revenue on the ground that order under section 78(5) could not have been passed against owner of the goods in view of ratio laid down by the honourable apex court in Assistant Commercial Taxes Officer v. Bajaj Electricals Ltd. [2008] 18 VST 436; [2009] 1 SCC 308, but it is an admitted fact, which has not been disputed by the learned counsel for the Revenue or petitioner also, that the declaration form ST 18C had already been produced before the assessing officer along with reply to show-cause notice, but the said point has not been considered by the Tax Board while rejecting the appeal of the petitioner. In State of Rajasthan v. D.P. Metals [2001] 124 STC 611; [2002] 1 SCC 279, the honourable apex court considered the provisions of section 78(5) and 78(2) of the Act and held that "if by mistake some of the documents are not readily available at the time of checking, principles of natural justice may require some opportunity being given to produce the same". Since the assessee produced the declaration form ST 18C before the assessing officer in response to show-cause notice then the Deputy Commissioner (Appeals) was fully justified in setting aside the order of the assessing authority levying penalty under section 78(5) of the Act. In these circumstances, I find that although the order of the Tax Board is liable to be set aside in view of judgment of the honourable apex court in the case of Assistant Commercial Taxes Officer v. Bajaj Electricals Ltd. [2008] 18 VST 436; [2009] 1 SCC 308, but order of the assessing authority was rightly set aside by the Deputy Commissioner (Appeals), in view of judgment of the honourable apex court in State of Rajasthan v. D.P. Metals [2001] 124 STC 611; [2002] 1 SCC 279. Consequently, the impugned order of the Tax Board is set aside, but revision of petitioner/Revenue is also dismissed in view of judgment of the honourable apex court in the case of State of Rajasthan v. D.P. Metals [2001] 124 STC 611; [2002] 1 SCC 279. Consequently, the impugned order of the Tax Board is set aside, but revision of petitioner/Revenue is also dismissed in view of judgment of the honourable apex court in the case of State of Rajasthan v. D.P. Metals [2001] 124 STC 611; [2002] 1 SCC 279. The order of Deputy Commissioner (Appeals) to the above extent is upheld. Parties are directed to bear their own cost.