JUDGMENT Hon'ble VYAS, J.—Instant civil sales tax revision petition has been filed under Section 86 of the Rajasthan Sales Tax Act, 1994 challenging the order dated 10.05.2005 passed by the Rajasthan Tax Board, Ajmer in Appeal No.652/2004/Jodhpur, communicated to the Commissioner, Commercial Taxes, Jaipur on 13.06.2005. 2. Although at the time of admitting this petition question was to be framed because the revision petitioner under Section 86 of the Act of 1994 can be entertained upon legal question. 3. Learned counsel for the petitioner submits that as per facts of the case, the respondent being the selling dealer sold certain plaint and machinery to M/s. Pitti Cement Industries through their bills No.164, 165 and 28, dated 18.12.1995 without charging any tax under the State Government notification dated 27.03.1995 against declaration ST-17. 4. The Assessing Authority while originally assessing the respondents to tax granted exemption on the above sale of plant and machinery as per notification of the State Government dated 27.03.1995. An audit objection was however raised upon which the Assessing Authority felt that the assessee could have sold such plant and machinery only under notification dated 06,.12.1990 and since they did not have the exemption certificate issued under the notification dated 06.12.1990 on the date when they sold the plant and machinery to the purchasing dealer, they were not entitled to claim tax exemption on the impugned sale of plant and machinery, therefore, re-opened the earlier assessment under Section 30 of the Act and re-assessed the turn over by charging tax and interest thereon. 5. The order passed under Section 30 of the Act was challenged by the assessee before the Deputy Commissioner (Appeals), Jodhpur on two grounds i.e. (i) that the order passed under Section 30 of the Act was without jurisdiction and hence bad in law; (ii) the respondents who were the selling dealers having the required exemption certificate No.287/70 dated 27.03.1995 sold the plant and machinery under the Notification of the State Government dated 27.03.1995 after obtaining declaration ST-17 from the purchasing dealer and, therefore, there was no onus on the respondents to have checked up before sale whether the declaration furnished by the purchasing dealer falls within the purview of the notification dated 27.03.1995 or not. 6. 6. The Deputy Commissioner (Appeals) after hearing the parties allowed the appeal filed by the respondent dealer and set aside the impugned order passed by the Assessing Authority under Section 30 of the Act vide judgment dated 06.09.2001. 7. Against the aforesaid judgment dated 06.09.2001, an appeal was preferred by the Revenue before the Rajasthan Tax Board, Ajmer and that appeal was registered as Appeal No.442/2002/Jodhpur, in which, learned Tax Board vide judgment dated 26.05.2003 set aside the order passed by the Deputy Commissioner (Appeals), Jodhpur and remitted the case back to the DC (Appeals) for passing its order afresh in the light of the discussion on all points including the point relating to jurisdiction of the Assessing Authority under Section 30 of the Act, raised before it in appeal, after providing opportunity of being heard to the parties. 8. In pursuance of the order passed by the Rajasthan Tax Board dated 26.05.2003, the Deputy Commissioner (Appeals) decided the matter afresh vide order dated 11.11.2003, in which, it is held that in the facts and circumstances of the present case the Assessing Authority was not having any jurisdiction to re-open the case under Section 30 of he Act of 1994 for re-assessment and, further, held that assessment so made is also not proper. 9. Against aforesaid order of the Deputy Commissioner (Appeals), Jodhpur dated 11.11.2003, again, appeal was preferred by the Revenue before the Rajasthan Tax Board, Ajmer being Appeal No.652/2004/Jodhpur. Vide the order dated 10.05.2005 learned Tax Board decided the above appeal which is challenged in this revision petition. 10. Learned counsel for the petitioner vehemently submits that learned Tax Board, Ajmer as well as Deputy Commissioner (Appeals), Jodhpur committed an error of law that the respondent assessee is entitled to exemption from payment of tax on the sale effected by it to M/s Pitti Cement Industries which started commercial production prior to 27.03.1995 even though it was not covered under the notification to avail the benefit of exemption from tax. 11. Learned counsel for the petitioner further argued that there is error in the finding of the Tax Board that the respondent assessee has already applied for exemption certificate under notification dated 27.03.1995 prior to passing the assessment order, therefore, it is not liable for tax and interest assessed by the Assessing Authority. 11. Learned counsel for the petitioner further argued that there is error in the finding of the Tax Board that the respondent assessee has already applied for exemption certificate under notification dated 27.03.1995 prior to passing the assessment order, therefore, it is not liable for tax and interest assessed by the Assessing Authority. Therefore, it is prayed that the order impugned passed by the Tax Board deserves to be quashed. 12. Per contra, learned counsel for the respondent assessee vehemently argued that the petitioner Revenue is not entitled to be heard because earlier vide judgment dated 26.05.2003 the Tax Board remitted the case to the Deputy Commissioner (Appeals) with direction to decide the matter afresh including the point relating to jurisdiction of the Assessing Authority under Sec.30 of the Act raised by the assessee in the appeal; and, Deputy Commissioner (Appeals), upon remand, categorically held that in the facts and circumstan-ces of this case, re-assessment made under Sec. 30 of the Act is not proper. Further, it has been held that the Assessing Authority has passed an order after re-opening the matter under Sec.30 of the Act only on the basis of change of opinion, which cannot be defined as per law. Therefore, no interference is warranted in this case and this revision petition deserves to be dismissed. 13. After hearing learned counsel for the parties, I have perused the entire pleadings of the revision, so also, the order dated 26.5.2003 passed in appeal by the Rajasthan Tax Board, Ajmer, in which, following directions were issued: "6. I have carefully considered the arguments of both the learned counsel and have also looked into the facts of the case on record. It is true that the respondents filed their appeal mainly with two grounds mentioned above - one relating to the question of fact and the other relating to the question of law. Although the learned DC (Appeals) seems to have dealt with the ground relating to the entitlement of the selling dealer i.e. respondents to sell the plant and machinery under the Notification dated 27.3.95 without charging any tax, but the second ground relating to the question of law i.e. lack of jurisdiction on the part of the learned AA for passing the order u/Sec. 30 of the Act appears to have escaped his decision. Even with regard to the question of fact, I do not find a clear finding of the learned DC (Appeals) whether the respondents could claim the benefit of selling their goods without charging tax under the Notification dated 27.3.95 or 6.12.90. Although he has stated in his order that even if the sale of the goods by the respondents was under the Notification dated 6.12.90, their claim for tax exemption under the Notification dated 6.12.90 should have been allowed by the learned AA after considering their belatedly filed application for providing Exemption Certificate under the above Notification in the light of the provisions of Rule 10(3) of the Rules. However, it is not clear from his order whether the respondents showed sufficient cause in their application on the basis of which the learned AA could have lawfully condoned the delay caused in the filing of the application and whether the respondents even pleaded for condonation of delay at all in their application. Unless all these facts were properly examined and a clear finding of fact arrived at, no proper decision even on the question of fact raised before the learned DC (Appeals) could have been passed under the law. Thus, in my view, learned DC (Appeals) seems to have committed an error while setting aside the order passed by the learned AA without properly appreciating full and correct facts of this case. Although the point regarding lack of jurisdiction was raised before him, but he seems to have failed to consider it in the light of the provisions contained u/Sec. 30 of the Act. In these circumstances, I find it difficult to affirm the order passed by the learned DC (Appeals). He thus needs to be directed to pass his order afresh on all the grounds raised before him as per law after properly examining all the facts on record. 7. In view of the above discussion, I allow the appeal, set aside the order passed by the learned DC (Appeals) and remand the case back to him for passing his order afresh in the light of above discussion on all the points including the point relating to the jurisdiction of the learned AA u/Sec. 30 of the Act raised before him in appeal. He shall provide opportunity of being heard to the respondents while doing so. 8. Order pronounced." 14. He shall provide opportunity of being heard to the respondents while doing so. 8. Order pronounced." 14. Upon perusal of the above order, it is revealed that the matter was remitted to the Deputy Commissioner (Appeals), Jodhpur on merit as well as on the question of jurisdiction for the purpose of re-opening the assessment. The Deputy Commissioner (Appeals) gave finding that in this matte action has been taken only on the basis of change of opinion which is not permissible under law. It was also held by the Deputy Commissioner (Appeals) that under Section 30 of the Act of 1994 re-assessment is permissible only if any fact has escaped notice. Here, in this case, the Deputy Commissioner (Appeals) gave finding that notice was not issued to the assessee in terms of Section 30 of the Act and the Revenue Preferred appeal before the Tax Board, in which, vide impugned judgment dated 10.05.2005 the Tax board carefully considered entire facts of the case and gave finding that on technical grounds action has been taken under Section 30 of the Act for the purpose of re-opening of the assessment proceedings which is not proper. 15. There is clear finding of the learned Tax Board that before issuing notice for re-assessment under Section 30 of the Act, it was obligatory upon the Assessing Authority to consider the application for exemption from tax was already filed by the assessee and legally he was entitled for exemption in view of notification dated 06.12.1990 and 27.03.1995. Therefore, no case is made out for interference. Hence, this revision petition filed by the Revenue is hereby dismissed.