State Taxation Tribunal - Rajasthan
Assistant Commercial Taxes Officer, ... vs Hindustan Granite on 1 January, 1998
Equivalent citations: [2001]121STC417(TRIBUNAL)
JUDGMENT
J.P. Bansal, Judicial Member
1. These three revision petitions which were originally filed before the honourable High Court of Judicature for Rajasthan under Section 15(2) of the Rajasthan Sales Tax Act, 1954 (for short, "the Act") against a common judgment dated March 31, 1993 whereby the Rajasthan Sales Tax Tribunal, Ajmer (later Rajasthan Tax Board, for short, "Tax Board") accepted the appeals of the respondents in all the three matters stand transferred to this Tribunal under Section 15 of the Rajasthan Taxation Tribunal Act, 1995. This is how these petitions have come up before us for disposal. Since they involve the consideration of common questions of fact and law they are being disposed of by a common judgment.
Petition No. 100 of 1996 :
2. The respondent-firm is engaged in the business of purchase and sale of marble and granite stone, etc. On November 1, 1990 when the truck No. GJ 02/T 5721 loaded with goods had crossed the check-post at Abu road and was proceeding to Gujarat it was intercepted and checked by the petitioner, Assistant Commercial Taxes Officer (Flying Squad), Raniwara (ACTO). The driver of the truck was asked to produce for inspection the requisite documents relatable to the goods which were being carried in the truck. He produced a GR No. 1 dated October 31, 1990 issued by Delhi-Bombay Roadlines, Abu Road. As per the description given therein the consignor of the goods was Sumit Marbles, Abu Road. There was a bill No. 122 dated October 31, 1990 with regard to 50.31 sq. metres of granite priced at Rs. 34,494.95. When the goods were checked in the light of the details given in the bill it transpired that in addition to the goods for which the bill was produced there were excess goods for which no document was produced. On search being made, the ACTO could lay his hands on two envelopes containing two bills. One bill No. 173 dated October 31, 1990 related to Sri Parashwanath Granites which shall be discussed in the following paragraph. The other bill No. 48 dated October 31, 1990 related to Hindustan Granites, Abu Road, with which we are concerned here at this stage. The bill concerned No. 48 together with bilty No. 02 dated October 31, 1990 was relatable to 15 cartons which contained 150 sq. feet of granite priced at Rs. 4,500. The driver on being asked to explain away this lapse could not give a satisfactory reply. The relevant bill No. 48 dated October 31, 1990 was not produced at the check-post, Abu Road nor were the goods declared there. The goods were seized on November 1, 1990. A notice was issued to the respondent-firm calling upon it to appear before the ACTO on November 16, 1990 to show cause as to why a penalty should not be imposed upon it. On November 1, 1990 the representative of the respondent-firm, Jagdish Agarwal, appeared before the ACTO and filed an application requesting that the goods be released. He expressed his desire to deposit the security amount as may be fixed by the ACTO. An amount of Rs. 1,350 was deposited under protest. The goods were released. On November 16, 1990 he took up the plea that it was a case of failure on the part of the driver of the truck not to make the declaration and to produce requisite documents with regard to the goods. The respondent-firm cannot be held liable for any lapse on the part of the driver. A penalty of Rs. 1,350 was levied.
Petition No. 101 of 1996 :
3. Facts of this petition are similar to the facts of the petition No. 100 of 1996 except for minor difference in certain details to be recorded here. The goods for which no declaration was made were relatable to a bill No. 173 and bilty No. 02 dated October 31, 1990 and which were priced for Rs. 47,102.85. On November 1, 1990 the representative of the respondent-firm, Sri Babu Lal, appeared before the ACTO and filed an application requesting that the goods concerned be released. He expressed his readiness to deposit the security amount that may be fixed by the ACTO. An amount of Rs. 14,150 was deposited as security under protest. The goods were released. On November 16, 1990 he took up the position that the driver was at fault. A penalty to the tune of Rs. 14,131 was levied.
Petition No. 103 of 1996 :
4. The facts of this petition are similar to those of the earlier two petitions Nos. 100 and 101 of 1996 discussed above except for the difference in details which are recorded here. The goods in this case were being carried in truck No. RNQ 1424. The ACTO on checking found one envelope containing the bill No. 27 dated October 31, 1990 which was relatable to bilty No. 82 dated October 31, 1990. The goods for which these documents were to have been produced and for which no declaration was made were priced at Rs. 29,295. On November 1, 1990 the representative of the respondent-firm, Sri Jagdish Agarwal, appeared before the ACTO and filed an application requesting the release of the goods. He expressed the desire to deposit the amount of security under protest. A sum of Rs. 8,790 was deposited with the department. The goods were released. He also promised to give a satisfactory reply within 15 days. On November 16, 1990 he appeared before the ACTO and took up the plea that it was a case of failure on the part of the driver to produce the requisite bill at the check-post, Abu Road. The ACTO considered the matter and imposed a penalty of Rs. 8,789 on the respondent-firm. The amount was adjusted against the sum of Rs. 8,790 which the respondent-firm had already deposited with the department under protest on November 1, 1990. The assessment orders dated November 16, 1990 were challenged by way of separate appeals before the Deputy Commissioner (Appeals), Jodhpur, who vide his order dated January 7, 1991 dismissed them. The matters were taken up in second appeals before the Tax Board which vide his impugned order dated March 31, 1993 accepted them and set aside the orders of the ACTO dated November 16, 1990 and the orders of Deputy Commissioner (Appeals) dated January 7, 1991.
5. We have heard the arguments and examined the material on the record. The learned counsel for the department has contended before us that the Tax Board committed a serious error in law when it held that no offence of avoidance or evasion of tax could be said to have been committed and as such no penalty could be imposed under Section 22A(7) read with Rules 62-A and 63 of the Rajasthan Sales Tax Rules, 1955 (for short, "the Rules") on failure of the driver to produce the requisite documents and also to make declaration with regard to the goods concerned. He further contends that the Tax Board erred in holding that the requisite documents could be produced within 15 days after the receipt of the show cause notice and if they were so produced no penalty could be imposed upon the respondent-firms.
6. Since the entire attach is directed against the judgment of the Tax Board we think it proper to reproduce paragraph 4 of the judgment as hereunder :
4. In my opinion the view taken by the authorities below is not in conformity with the provisions of Section 22A(7) of the Act and Rules 62-A and 63 of the Rules. Even if it is assumed that the drivers of the vehicle did not show the documents or lodged relevant information at check-post, Abu Road, no case under Section 22A(7) can be said to be made out inasmuch as the law permits the owner or the in-charge of the goods to produce the relevant documents within 15 days after receipt of the show cause notice. In the instant case, the bills were eventually examined by the ACTO. It has not been pointed out that any document was not reliable. It appears that by the attitude of the drivers the ACTO felt offended.
7. The Tax Board gave a clean chit to the respondent-firms because it felt that it was not obligatory on the part of the drivers to produce documents at the check-post, Abu Road, with regard to the goods which were in excess of the goods for which the documents were produced and declarations made. It was further held that such a production of documents could be made within a period of 15 days after the receipt of show cause notice. If it were done no offence under Section 22A(7) of the Act was made out. This reasoning of the Tax Board is not in conformity with the provisions contained in Section 22A(3) and (7) of the Act. Sub-section (3) makes it obligatory on the part of the owner or person in-charge of the vehicle, etc., to carry with him the requisite documents and also to produce them at the check-post or on demand before the officer empowered in this behalf. He is also required to give a declaration containing the necessary particulars with regard to the goods being carried in or on the vehicle, etc. Failure on his part to do so entails penalty under Sub-section (7). The offence under Sub-section (7) is complete when the owner or person in-charge of the vehicle, etc., fails to produce the requisite documents as also the declaration. In these cases before us the documents together with the declaration were produced neither at the check-post, Abu Road, nor at the time of the checking done by the ACTO. It has been clearly held by the Rajasthan High Court in its judgment in Mahaveer Conductors v. Assistant Commercial Taxes Officer, Ward III, Circle 'C', Jodhpur [1997] 104 STC 65 ; (1994) 15 RTJS 107 (Raj), that where the goods in transit are not accompanied by the requisite documents and the checking is done the offence is complete on non-production of such documents. In these cases the drivers failed to produce the documents with regard to the excess goods which were being carried outside the State of Rajasthan to Gujarat. The incident took place on November 1, 1990. The seizure of the goods also did take place the same day. The representatives of the respondent-firms secured the release of the goods on that day. They take up the plea that the drivers were responsible for the lapse on their part for which no liability could be fastened on the respondent-firms for the payment of penalty amount. A reference in paragraph 4 quoted above is made to the Rules 62-A and 63 of the Rajasthan Sales Tax Rules, 1955 to support the finding given by the Tax Board. These rules lend no support to the finding arrived at by the Tax Board. Rule 62-A enumerates the documents which are to be possessed and produced by the owner or in-charge of the vehicle. Nowhere does it say that it is not obligatory for the owner or person in-charge of the vehicle, etc., to carry them and produce them at the check-post or on demand by the officer empowered in this behalf. Rule 63(1) provides that the person in-charge of the goods shall deliver the documents and also declaration as prescribed under Rule 62-A. In case of his failure to deliver the documents and declaration the goods may be seized by the officer concerned. Rule 63(3) provides that the goods so seized may be released in the circumstances mentioned therein. What it provides is that a 15 days' show cause notice needs to be given to the affected person. Nowhere does it say that the offence of Section 22A(7) of the Act stands purged or washed off on the production by the owner or person in-charge of the goods of documents and declaration within a period of 15 days.
8. A conjoint reading of the provisions contained in Section 22A of the Act and Rules 62-A and 63 makes it clear that the offence which entails penalty under Section 22A of the Act is committed the moment the owner or the person in-charge of the goods, be he a driver, fails to produce the requisite documents and declaration at the check-post or on demand by an officer empowered in this behalf. Rules 62-A and 63 are of no help to the owner or the person in-charge of the goods in this behalf. They simply lay down the procedural requirements with regard to the type of documents which are required to be carried and produced, the seizure of goods and their release as also the period of notice for the completion of enquiry. The procedural tail cannot be allowed to wag the substantive head. Once the offence under Section 22A of the Act is committed it cannot be washed off by the procedure laid down in Rules 62-A and 63. It is also immaterial that the documents produced at a later stage were not adjudged as not reliable.
9. To conclude, we accept the revision petitions, set aside the orders of the Tax Board dated March 31, 1993 and restore the orders of the ACTO dated November 16, 1990 and orders of the Deputy Commissioner (Appeals), Jodhpur dated January 7, 1991. We make no order as to costs.