Rajesh Balia, J.- By this revision under Sec. 86(2) of the Rajasthan Sales Tax Act, 1994 (for short ‘the Act’), the petitioner has challenged the order dated 7.1.1999 passed by the Rajasthan Tax Board, Ajmer whereby the Rajasthan Tax Board has set aside the order dated 112.1995 passed by life Assessing Officer as also the order dated 10.1996 passed by the Deputy Commissioner (Appeals) levying penalty against the assessee-respondent for carrying unfilled declaration form No. ST:18-A alongwith the goods in transit. (2). The brief facts giving rise to this revision are, that on 111.1995, Truck No. GJ-8T-4 142 carrying 48 Refrigerators of Allwyn Brand was stopped and checked near Pindwada on Ahemdabad- Jodhpur via Pali route and it was found that these Refrigerators were transported from Hyderabad and its destination was Jaipur at the Branch Office of the assessee-respondent. All relevant documents like Bill, Bilty, Insurance papers etc. were available with the Transporter. The declaration form ST-ISA was also available with the Transporter accompanying the documents duly signed by the Dealer but it was not duty filled in. The Assessing Officer found that carrying of incomplete declaration Form ST-i 8A alongwith the goods in transit is the breach of the provisions of Sec. 78 of the Act and hence he seized the goods and issued a notice for levying penalty against the assessee-respondent. (3). In response to the above notice, the Manager of the assessee-dealer appeared before the Assessing Officer and prayed for releasing the goods and the goods were released. However, after hearing the consignee, the penalty for a sum of Rs. 1,06,560/-was levied against the assessee-respondent under Sec. 78(5) of the Act by the Assessing Officer vide his order dated 112. 1995. (4). Against the order dated 112.1395, the assessee-respondent filed an appeal before the Deputy Commissioner (Appeals), who affirmed the order dated 112.1995 passed by the Assessing Officer vide his order dated 10.1996. Thereafter, the assessee-respondent filed a further appeal before the Rajasthan Tax Board, Ajmer. The Hoard vide its Judgment dated 12.1999 allowed the appeal filed by the assessee-respondent and set aside the order dated 112.1995 passed by the Assessing Officer as affirmed by the Deputy Commissioner (Appeals). Hence this revision by the Revenue. (5). It has been urged by Mr. Sangeet Lodha, the learned Counsel for the Revenue that in this case, breach of the provisions of Sec. 78(5) of the Act has been duly proved and thus, penalty has been validly levied against the assessee-respondent and merely on the ground of absence of mens rea, the penalty imposed by the Assessing Officer could not have been set aside by the Rajasthan Tax Board. According to him, the provisions in this regard are vitally different in Sec. 78(5) than the corresponding provisions of Sec. 22-A(7) of the repealed Act. (6). On the other hand, Mr. Vineet Kothari, the learned Counsel for the respondent has contended that Sec. 78 of the Act is in substance para materia with the provisions of Sec. 22-A of the Rajasthan Sales Tax Act, 1954 (Repealed Act) and therefore, the principles laid down In Mahaveer Conductors vs. Assistant Commercial Taxes Officer 1997 (104) STC 65, would fully govern the present case. (7). Sec. 22-A of the Rajasthan Sales Tax Act. 1954 has been replaced by S.78 of the Rajasthan Sales Tax Act, 1994 providing for establishment of check-post and inspection of goods while in movement. To decide the controversy involved in the instant case, here it will be appropriate to quote the provisions of S. 22-A (7) of the Rajasthan Sales Tax Act, 1954 and 5. 78(5) and (6) of the Rajasthan Sales Tax Act,.1994 injuxta position:

“Repealed Act “S.22-A(7)-(a) The officer-in-charge of the check post or (he Officer check-post or barrier or any other Officer not below the rank of an Assistant Commercial Taxes Officer, empowered in this behalf may, after giving the owner or person inc