ORDER

The case of the petitioner is that it is a Proprietary Firm engaged in the business of transportation of goods. The petitioner was engaged by one Pioma Industries at Gujarat to transport its goods from Kalol in Gujarat to Indore (Madhya Pradesh) where Pioma Industries has its depot. The goods involved are Rasna Soft Drink Concentrates. The petitioner loaded the goods in two trucks bearing No. GJ-1-TT-5400 and GJ-1-V-5368 from the factory at Kalol on 09.04.2003. The documents were also accompanying the goods in the vehicles. Both the vehicles were stopped at the Commercial Tax Check Post, Pitol, District Jhabua on 10.04.2003. The documents were demanded and the drivers produced the relevant documents before the Check Post Officer. With regard to the value of goods, the respondent No.2, namely, the Commercial Tax Officer calculated the value according to the Maximum Retail Price (MRP) of the goods, which were printed on the packets of different varieties. It was found that the total value of goods according to MRP being transported was 3.25 times the value according to the stock transfer invoice. The statement of the driver was recorded and goods were seized along with the trucks. The driver was asked to submit his explanation for the abnormal difference in the value of the goods. The consignor – Pioma Industries explained the position and indicated that the goods pass through 4 to 5 stages through registered dealers to reach the consumer finally and it is only at that stage the goods are sold at MRP rates. Therefore, there is a difference in the stock transfer price. Being dissatisfied with the explanation, a notice dated 10.04.2003 in Form-76 under Section 45-A of the Commercial Tax Act, 1994 was issued in respect of the goods being carried out in each truck. The notice indicated that the goods being carried by truck No. GJ-1-TT-5400 were under-valued to the tune of Rs.3,68,113/- and in respect of goods being carried by truck No.GJ-1-V-5368 were under-valued to the tune of Rs.5,05,849/- on which the tax was calculated @ 9.2%. The petitioner was asked to show cause as to why a penalty equal to 10 times of the said amount should not be levied upon him. He submitted his reply. Being dissatisfied with the same, an order was passed on 25.04.2003 in Penalty Case No.7 of 2003 imposing a penalty of Rs.3,38,660/- in respect of truck No.GJ-1-TT-5400 and in Penalty Case No.8 of 2003 imposing a penalty of Rs.4,65,380/- in respect of goods being transported by truck No.GJ-1-V-5368. Aggrieved by the same, a revision was filed under Section 62(1)(b) of the Commercial Tax Act before the Deputy Commissioner of Commercial Tax Act, Indore. The respondent No.2 rejected both the revisions by a common order dated 10.02.2004 passed in Revision Nos.207 of 2003 and 208 of 2003, however, the penalty was reduced by Rs.48,014/- in respect of the goods carried by truck No.GJ-1-TT-5400 and reduced by an extent of Rs.65,980/- in respect of the goods carried by truck No.GJ-1-V-5368.

Questioning these impugned orders, the instant petition is filed.

2. petitioner’s counsel contends that the orders passed by the authorities are erroneous and liable to be set aside. It is contended that the goods being sold by Pioma Industries – a registered dealer in Madhya Pradesh would pass through four registered dealers to ultimately reach the retailers and thereafter sell the goods to the consumer at MRP rates. The rates at every stage are fixed. It was explained that the tax is payable @ 9.2% by Pioma Industries under Section 9 and by subsequent registered dealers at the same rate under Section 9-B of the Commercial Tax Act on the difference amount of resale price of each registered dealer and the sale price of the goods in the hand of the selling registered dealer from whom they have purchased. It was clearly indicated that the price at which the goods are sold by each registered dealer, who is liable to pay tax. Thus, Pioma Industries pays tax @ 9.2% under Section