ORDER PRAKASH SHRIVASTAVA :- This writ petition is directed against the order dated October 3, 2003, passed by the Additional Commissioner, Commercial Tax, Indore, in Revision No. 53/03/Indore/State, dismissing the revision preferred by the petitioner against imposition of penalty under section 43(6) of the Madhya Pradesh Commercial Tax Act, 1994. Petitioner No. 1, is a registered dealer. During the relevant period April 1, 1999 to March 31, 2000, the petitioners had purchased the goods from the exempt unit having eligibility certificate under exemption Notification No. A-3-11-86-ST-V(74) dated October 16, 1986. The resale of these goods by the petitioner to its dealers was exempted under the Notification No. A-11-86-ST-V(77) dated October 16, 1986, subject to the compliance with the conditions mentioned in the said notification. During the assessment proceedings, the assessing authorities had issued the notice dated March 29, 2003, requiring the petitioners to show cause as to why the penalty for non-affixation of the seal as required under section 43(3) read with rule 66(2) be not imposed. The petitioners submitted the reply and the assessing authority by the order dated April 30, 2003, held that the petitioners had not affixed the seal in the invoice in terms of section 43(3) read with rule 66(2) of the Madhya Pradesh Commercial Act, 1994 and Rules, 1995, therefore, the penalty under section 43(6) of the Act was levied on the petitioners. The petitioners preferred a revision before the Additional Commissioner of Commercial Taxes, which has been rejected by the impugned order. Aggrieved with the same, the present writ petition has been filed. Though the learned counsel for the petitioners has challenged the impugned revisional order on several grounds, but during the course of the arguments, he pressed the ground that the presumption under section 43(6) of the Act is a rebuttable presumption and the material, which was produced by the petitioners before the revisional authority to rebut the presumption has not been considered, therefore, the revisional order cannot be sustained. As against this, the learned counsel for the respondent submitted that the impugned order does not suffer from any error and no interference is required by this court. We have heard learned counsel for the parties and perused the record. As against this, the learned counsel for the respondent submitted that the impugned order does not suffer from any error and no interference is required by this court. We have heard learned counsel for the parties and perused the record. Under section 43(3) a registered dealer selling specified goods manufactured by exempted industrial unit under any notification is required to issue to the purchaser a bill, invoice or cash memo specifically stating in the prescribed manner that the goods being sold are the goods manufactured by an industrial unit availing of the facility of exemption from payment of tax in whole and no tax has been paid on such goods. Section 43(6) provides that if a registered dealer referred to in section 43(3) fails to make statement in terms of the said section, it is presumed, unless the contrary is proved by him, that he has facilitated the evasion of tax on sale of such goods and accordingly, he is liable to pay penalty at the rate prescribed. Rule 66(2) requires a registered dealer referred in section 43(3) to affix a rubber stamp in the bill, cash memo or invoice stating that "goods sold are manufactured by industrial unit holding eligibility certificate/eligible for exemption and are exempt from payment of tax - commercial tax not paid". In the present case, undisputedly, the petitioner is a registered dealer referred to in section 43(3) of the Act and he has sold goods specified in Schedule II manufactured by the exempted unit, but while issuing the invoice to the purchasing registered dealers he has not affixed the seal as required by rule 66(2), therefore, a presumption has been raised under section 43(6) that he has facilitated the evasion of tax on sale of such goods. The presumption under section 43(6) is a rebuttable presumption and the said sub-section specifically mentioned "unless the contrary is proved by him" therefore, in terms of the section, the dealer concerned, is required to be given adequate opportunity to prove that he has not facilitated the evasion of tax. The Supreme Court in the matter of Sodhi Transport Co. The presumption under section 43(6) is a rebuttable presumption and the said sub-section specifically mentioned "unless the contrary is proved by him" therefore, in terms of the section, the dealer concerned, is required to be given adequate opportunity to prove that he has not facilitated the evasion of tax. The Supreme Court in the matter of Sodhi Transport Co. v. State of U.P. reported in [1986] 62 STC 381, while considering section 28B of the U.P. Sales Tax Act, 1948, which provides for drawing the presumption of sale of goods within the State on failure to deliver the transit pass on last check-post or barrier before exit from the State, has held that such a presumption is a rebuttable presumption and the transporter concerned is not shut out from showing by producing reliable evidence that the goods have not been actually sold inside the State and it is only where, the presumption is not successfully rebutted, the authorities concerned, are required to rely upon the rule of presumption in section 28B of the Act and further that the authority concerned is required to arrive at the conclusion by a judicial process before levying sales tax, that the goods have been sold inside the State and in doing so, can rely upon the statutory rule of presumption contained in section 28B of the Act, which may be rebutted by the person against whom action is taken. The Supreme Court in the matter of State of Madhya Pradesh v. Bharat Heavy Electricals reported in [1997] 106 STC 604, while dealing with the similar provision contained in section 7(5) of the Madhya Pradesh Stahaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976, has held that : "10. ... There can be several good reasons why a registered dealer may have failed to make the statement required to be furnished by him by sub-section (1) and sub-section (2) of section 7. In our opinion it could not be the intention of the Legislature that an accidental omission or non-furnishing of the statement for a good and valid reason must necessarily lead to the presumption that the registered dealer had the intention of facilitating the evasion of entry tax ... 12. In our opinion Mr. Sanghi is right in submitting that section 7 should be read as containing a rebuttable presumption. 12. In our opinion Mr. Sanghi is right in submitting that section 7 should be read as containing a rebuttable presumption. This would mean that it will be open to the registered dealer to satisfy the authorities concerned that the non-submission of the statement under sub-sections (1) and (2) of section 7 was not with the intention to facilitate the evasion of the entry tax. In other words, sub-section (5) of section 7 places the burden of proof on the registered dealer to show that the non-submission of the statement under sub-sections (1) and (2) of section 7 was not with a view to facilitate the evasion of entry tax. If a registered dealer is unable to satisfy the authorities in this regard then, in the absence of satisfaction, the presumption is that non-submission of statement has facilitated the evasion of entry tax. Construing section 7(5) to contain a rebuttable presumption, it does not suffer from any vice ..." The Division Bench of the Madhya Pradesh High Court in the matter of Western Coalfields Limited v. Commissioner of Sales Tax, Madhya Pradesh reported in [2009] 19 VST 466; [2007] 11 STJ 297, while considering the levy of penalty in respect of the presumption under section 7(5) of the Entry Tax Act has held that : "Applying the aforesaid constructions of sub-sections (1) and (5) of section 7 of the Act, we are of the considered opinion that the penalty in respect of sales to registered dealers of the amount of Rs. 47,47,581.71 was not leviable when such registered dealers have certified that entry tax was paid by them on the goods purchased by them. 47,47,581.71 was not leviable when such registered dealers have certified that entry tax was paid by them on the goods purchased by them. Once there was satisfactory evidence before the authorities that the purchasing registered dealers had in fact, paid the entry tax on the coal purchased by them from the petitioner, there was, in fact, no evasion of entry tax and, thus, the presumption raised in sub-section (5) of section 7 of the Act stood rebutted and accordingly, no penalty could be levied on the petitioner for not mentioning in the bills under which the coal was sold to the registered dealers that the goods were local goods in relation to a particular local area where they were produced by the petitioner and that no entry tax had been paid on such goods ..." In view of the aforesaid judgments and looking to the language of section 43(6) of the Act, it is clear that the presumption contained under section 43(6) is a rebuttable presumption. Therefore, the authorities are required to give a reasonable opportunity to the assessee to rebutt the presumption before levying the penalty and the material which is produced by the assessee in rebuttal is required to be looked into. In the present case, the petitioners had filed the declarations, issued by them to the purchasing dealers in terms of the exemption notification before the assessing authority. They had also filed the affidavit about producing these declaration. Before the revisional authority, they had filed the certificates issued by the purchasing dealers stating that they had not claimed any set-off in respect of the purchase from the petitioners during the relevant period either at the time of filing return of commercial tax or during the assessment proceedings. It is not in dispute that this additional material could be submitted by the petitioners before the revisional authority. The counsel for the respondent on the directions of this court has produced the original record of the revisional authority and on perusal of the same, it is found that though the certificate issued by the purchasing dealers were filed before the revisional authority, but the authority failed to consider them while affirming the levy of penalty under section 43(6) of the Act. This material was produced by the petitioners in rebuttal of presumption about facilitation of evasion of tax, therefore, it was required to be considered while imposing or affirming the penalty under section 43(6) on the presumption of evasion of tax. For the aforesaid reason, we find that the impugned order passed by the revisional authority is not sustainable in law and the same is accordingly, set aside and the matter is remitted back to the revisional authority to pass afresh reasoned order after giving an opportunity of hearing and to produce additional documents, if any, to the petitioners and after considering all the material, which is produced by the petitioners to rebut the presumption under section 43(6) and after taking note of the relevant judgments on the point. The other grounds raised by the petitioners have not been examined since the matter has been remitted back to the revisional authority. Therefore, the petitioners will be at liberty to urge the other grounds, at an appropriate stage, if the occasion, so arises. The petition is accordingly, disposed of. No cost.