Rajasthan High Court - Jaipur
Assistant Commercial Taxes Officer, ... vs M/S. Voltas Limited Jaipur (Rajasthan) on 21 January, 2000
Equivalent citations: [2000]120STC217(RAJ), 2001(4)WLC584, 2000(2)WLN402, 2001(2)WLN492
ORDER Balia, J.
(1). 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 15.12.1995 passed by life Assessing Officer as also the order dated 5.10.1996 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 16.11.1995, Truck No. GJ-8T-4142 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-18A 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 15.12.1995.
(4). Against the order dated 15.12.1395, the assessee-respondent filed an appeal before the Deputy Commissioner (Appeals), who affirmed the order dated 15.12.1995 passed by the Assessing Officer vide his order dated 5.10.1996. Thereafter, the assessee-respondent filed a further appeal before the Rajasthan Tax Board, Ajmer. The Hoard vide its Judgment dated 15.2.1999 allowed the appeal filed by the assessee-respondent and set aside the order dated 15.12.1995 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 (1), 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 S. 78(5) and (6) of the Rajasthan Sales Tax Act,.1994 in juxta 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 incharge of the goods a reasonable opportunity of being heard and after holding such further enquiry as he may be deem fit, impose on him for possession of goods not covered by goods vehicle record, and other documents prescribed under sub-S. (3) or for submission of false declaration or documents, a penalty not exceeding 30% of the value of such goods, as may be , determined by such officer.
Provided that where the goods are being carried without proper documents as required by sub-S. (3) or with any false declaration or statements and the owner or the incharge or the driver of the vehicle, boat, or animal carrying such goods is found in collusion for such carrying of goods, the vehicle, boat or animal shall also be seized by the Officer empowered under sub-S. (7), and such office'', after affording an opportunity of being heard to such owner, incharge or driver may Impose a penalty not exceeding 30% of the value of the goods being carried and shall release the vehicle, boat or animal on the payment of the said penalty, or on furnishing such security in such form as prescribed under clause (b) of sub-S. (7):
Provided further that when an owner, incharge or driver of a vehicle, boat or animal is found guilty second time of the offence mentioned in the preceding proviso, he shall be liable to maximum penalty as mentioned in the preceding proviso and the vehicle, boat or animal carrying the goods may be kept, seized and detained for a period not exceeding 30 days after the date of the payment of the penalty or furnishing of the security.
(b) Such Officer may release any or the goods seized under subsection (5) or sub-section (6) on payment of the penalty under clause (a) on furnishing such security in such form as may be prescribed for the payment thereof, as he may consider necessary."
"New Act "S. 78(5) The Incharge of the check-post or the officer empowered under sub-S. (3), after having given the person incharge of the goods a reasonable opportunity of being heard and after having held such enquiry as he may deem fit, shall impose on him for possession or movement of goods, whether seized or not, in violation of the provisions of clause (a) of sub-section (2) or for submission of false or forged documents or declaration, a penalty equal to thirty percent of the value of such goods.
(6) During the pendency of the proceedings under sub-section (5), if anybody appears before the Incharge of the check-post or the officer empowered under sub-S. (3) and prays for being impleaded as a party to the case on the ground of involvement of his interest therein, the said incharge or the officer on being satisfied may permit him to be impleaded as a party to the case; and thereafter, all the provisions of this section shall mutatis mutandis apply to him.
(7) The incharge of the check-post or the officer empowered under sub-S. (3) may release the goods to the owner of the goods or to anybody else duly authorised by such owner, if seized and not already released under clause (c) or sub-S. (4), on payment of the penalty imposed under sub-S. (5) or on furnishing such security for the payment thereof, as such incharge or officer may consider necessary.
[No such provision in the Repealed Act]"
(8). A comparison of two provisions make it clear that under the new Act now additional provision has been made to levy penalty against owner of the goods under sub-S. (6] of S. 78, provided such owner of goods makes an application to be impleaded as party to such proceedings and such, prayer is granted. However, requirement of giving an opportunity of hearing to the party against whom penalty is proposed to be levied and holding such enquiry as is deemed fit before levy of penalty remains the same. The requirement in this regard remain the same under the New Act as under the Old Act.
(9). In Mahaveer Conductor's case (supra), the Court has laid down that the law does not provide that once the goods in transit are found to be unaccompanied with the requisite documents, the levy of penalty is automatic and if that were so, the provision for issuing a show cause notice to the owner of transporter will be meaningless. Notices are issued to the person likely to be affected by the order, only with a view to give him an opportunity against the proposed penalty. Such an opportunity must necessarily include the opportunity to show that no penalty is leviable.
(10). In the present case, it is not dispute that the goods have been transported by the Consignor from Hyderabad for Jaipur to its own branch Office and the goods were accompanied with Bills, Bilty giving particulars of the goods. Even declaration in Form No. ST-18A was also accompanied with the goods, which is a declaration to be furnished by the Importer of the consignee at whose request the goods have moved from outside the State to inside the Stale. This declaration form ST-18A is being given by the consignee in advance to the consignor. The consignee is required to fill the details of the imported goods in Form No. ST-18A. R. 53 of the Rajasthan Sales Tax Rules, 1996 provides that a 'registered dealer' who imports any taxable goods as may be notified by State Govt. for sale; or who receives any goods as may be notified by the State Govt. consigned to him from outside the State; or who intends to bring, import or otherwise receives any goods from outside the Slate, as may be notified by the State Govt. of the value of Rs. 10,000/- or more for use, consumption or disposal than by way of sale; shall furnish or cause to be furnished a declaration in Form ST 18A completely filled in all respect in ink and the counterfoil of the declaration shall be retained by such dealer and its portions marked "Original" and "Duplicate" shall be carried with the goods in movement.
(11). In pursuance of R. 53 of the Rules of 1995, Form ST 18A was prescribed, which contains a declaration on the part of the consignee and the declaration sought to be provided in Form ST I8-A reads as under:
"Declared and certified that the goods particulars of which are given below have been imported by me/us or have been consigned to me/us from outside the Stale for purposes mentioned in R. 52, and hold myself/ourselves-liable for payment of lax as per law to the Government on the sale thereof."
(12). It is not in dispute that the Form ST-18A containing this declaration has been sent by the consignee-Importer and was accompanying the goods. The particulars which are required to be furnished in Form ST-18A are:
(1) Name and complete address of the Consignor;
(2) (a) Name and complete address of the consignee; (b) R.C. No. of the Consignee under RST Act, CST Act;
(3) Nature of transaction : (a) Consignment; or
(b) Depot Transfer; or
(c) Inter-State sale ; or
(d) Any other nature;
(4) Description of goods;
(5) Price/Estimated value of the goods in rupees;
(6) Invoice No., Challan No. and Date; and (7) (a) Name and Full address of the Carrier (Transport Co. or owner of the vehicle)
(b) Registration No. of the vehicle.
(13). A perusal of the above-mentioned requisite particulars go to show that about most of these particulars, the consignee would be able to know when the goods are received by him with the requisite documents. As stated above, R. 53 of the Rules of 1995 specifically provides that the Importer of the goods from outside !he Slate shall furnish or cause to be furnished a declaration in Form ST 18A completely filled in all respects in ink and the counterfoil of the declaration shall be retained by such dealer and its portions marked "Original" and "Duplicate" shall be carried with the goods in" movement. This necessarily implies that these particulars are required to be furnished by consignee and declaration is also to be of the consignee under his signatures. If the requirement of completely filling Form ST 18A is to be read in its proper spirit, then R. 53 of the Rules is to fill in all the three portions of Form ST-18A i.e. "Original", "Duplicate" and "counterfoil". Filling of all the three portions of the Form ST-I8A is possible only when the requisite documents are received alongwith the goods. Prior to that, when the consignee is required to send Form No. ST-18A to the consignor for the purpose of delivering it to the transporter for carrying it alongwith the goods, the description of goods, Price/Estimated value of the goods in rupees, Invoice No./Challan No. and Date; Name and address of the carrier and Registration No. of the Vehicle carrying goods are not known to him. Until the goods are put in transit by the Consignor and the details thereof are sent to him by the Consignor, the consignee is not expected to fill in all these information and in that event, in the very nature of things the blank Form ST-18A duly signed by the consignee is to be sent to the Consignor for the purpose of delivering it to the transporter for carrying it alongwith the goods and after the receipt of the goods, the consignee become in a position to Till in the requisite information in Form ST 18A and then he can deposit the same with the Department. Ekse-these particulars are to be filled by the consignor at his end. It is implicit that in such circumstance, consignee cannot be responsible for carriage of blank form with the goods. Thus, there cannot be inference of mens rea to evade/avoid the payment of tax by the .assessee-respondent merely because the forms were found to be incomplete. If those particulars are to be filled by the consignor, though no such objection is specifically prescribed, then not filling of such particulars become a default of consignor. In that event vicarious liability for default of consignor is not envisaged to be shifted to consignee when he has done all that he could have done.
(14). In this view of the matter, I am of the opinion that by carrying unfilled Form ST-18A alongwith the goods, the assessee has not breached the provisions of S. 78{5) of the Rajasthan Sales Tax Act, 1995.
(15). Moreover, the substantive part of the declaration in Form No. ST 18-A is the requisite declaration and undoubtedly by the importer of goods as envisaged in the form about payment of tax. That undoubtedly the respondent has given and the other particulars referred in the form when are unequivocally available from all other requisite documents, about veracity of which there is no doubt, it cannot be said that such a mistake was more than a technical breach of procedural provision. The case will squarely be without the ratio of Hindustan Steel Ltd. State of Orissa (2).
(16). In the result, this revision has no force and it is hereby dismissed with no order as to costs.