RAJESH BALIA, J. - This revision, under section 15 of the Rajasthan Sales Tax Act, is against the order dated May 30, 1991, passed by the Rajasthan Sales Tax Tribunal, in Appeal No. 6/89/ST/Jodhpur.

Briefly stated, the facts giving rise to present revision are that - on August 18, 1988. Truck No. RNM 369 carried five aluminium coils, purchased by the petitioner from M/s. Prem Cables Pvt. Ltd., Pipaliyan Kalan. The transporter carried the requisite documents as required under section 22A of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as "the Act"), only in respect of four coils and the fifth coil, weighing 2,912 kg. was not accompanied by any document. At the check-post, on finding one coil of aluminium unaccompanied by document, the Assistant Sales Tax Officer, Ward III, Circle C, Jodhpur, seized the coil and issued a notice to the petitioner to appear on September 3, 1988, and show cause against levy of penalty on the value of the coil, estimated to be Rs 81,000, weighing 2,912 kg. at the rate of 30 per cent maximum permissible levy of penalty under section 22A(7) of the Act. The petitioner moved an application that the aluminium coil is urgently required for the purpose of manufacture of conductors which are to be supplied to Punjab Electricity Board and delay in getting the coil might result in severe loss. He, therefore, offered to make payment of tax and whatever penalty that may be leviable on the spot. On such application, the Assistant Commercial Tax Officer (for short, hereinafter, "the A.C.T.O.") levied the penalty at the maximum amount of Rs. 24,300 and released the goods on that very day.

The petitioner, thereafter, preferred an appeal before the Deputy Commissioner, Commercial Taxes (Appeals), on August 30, 1988. Accompanied with appeal, he produced a covering letter from the seller of the goods, dated August 18, 1988 along with the gate pass, dated August 17, 1988, for removal of excisable goods and the delivery invoice dated August 18, 1988; and the transport receipt dated August 18, 1988, all of them pertaining to the goods in question. It was urged by the authorised representative of the petitioner that as is apparent from the communication of the seller dated August 18, 1988, the fifth coil was loaded in the truck at the nick of time and the papers relating to it were left behind by the transporter to be carried along with it. The petitioner was in no way at fault for the goods being carried without accompanying requisite documents. In the circumstances, the breach of law was mere technical breach and not intended to evade or avoid the payment of tax. Such venial or technical breach of law ought not to attract penalty. The Deputy Commissioner (Appeals) rejected the appeal, and affirmed the order passed by the ACTO.

On further appeal, the Rajasthan Sales Tax Tribunal also affirmed the findings of the Deputy Commissioner (Appeals) but reduced the penalty from Rs. 24,300 to Rs. 18,000, by treating the offence as first offence of the petitioner.

Learned counsel for the petitioner urged that the Deputy Commissioner (Appeals) and the Tribunal have based their decision merely on surmises and conjectures, without making any inquiry about the genuineness of the documents produced before the Deputy Commissioner of Appeals.

Learned counsel contended that law is well-settled in the matter of penalty for breach of any statutory conditions, like the present one, the penalty ought not to be levied in the absence of finding as to contumacious or wilful default merely because it is lawful to do so. In the present case, there is no material to show any wilful or contumacious default on the part of the petitioner.

On the other hand, learned counsel for the Revenue strenuously defended the levy of penalty by contending that it is admitted fact that one coil as aforesaid was being transported without requisite documents. Section 22A has been enacted to prevent evasion of tax and any breach of provisions of