TMI Blog2014 (1) TMI 1206X X X X Extracts X X X X X X X X Extracts X X X X ..... y under Section 78(5) of the Act of 1994 in the event of any contravention of the mandate of Section 78(2) of the Act of 1994, Rule 53(1)(a) of the Rules of 1995 and notification issued therein being found. Not only the goods in transit i.e. PVC sheets were not accompanied by the requisite statutory declaration, but also in spite of show cause notice no attempt was made to file the requisite declaration by the respondent- assessee. Contrarily as earlier indicated it was conceded and admitted before the assessing authority that the respondent-assesseee was in breach of Section 78(2) of the Act of 1994, Rule 53 of the Rules of 1995 as also notification dated 30.03.2000 and was willing to pay the penalty - Following decision of Assistant Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments included challan No.990-991 dated 21.03.2001 of M/s Happy Freight Carrier, Jaipur as also bills and bilties mentioned therein. Bilty No.2039 and enclosed bill No.441 dated 21.03.2001 indicated that PVC sheets were consigned and were being transported to the respondent-assessee M/s. Hemant Plastic Udyog. Finding that in spite of the PVC sheets being notified goods under Rule 53(1)(a) of the Rules of 1995 and yet were not accompanied by the requisite statutory declaration form ST-18A and a prima facie violation of the provisions of Section 78(2) of the Act of 1994 being made out, the assessing authority issued a show-cause notice to the respondent-assessee. On receipt of notice, the respondent-assessee admitted to the breach of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal and upheld the order of the Deputy Commissioner (Appeals) setting aside the penalty under Section 78(5) of the Act of 1994 on the respondent-assessee primarily on the ground that prior to 22.03.2002 even if there was breach of Section 78(2) of the Act of 1994, no penalty could be visited upon the owner of the goods in transit and had to be confined to the person-in-charge to the goods in transit. Hence this revision petition. From the facts on record, the following questions of law arise for consideration of this Court : (i) Whether penalty in the facts of the present matter could not have been imposed on the owner of the goods merely for the reason that section 78(5) was amended for certain purposes on 22.03.2002 ? (ii) Whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea is not required to be proved and on mere breach of obligation under Section 78(2) of the Act of 1994 and Rule 53 of the Rules of 1995 where goods in transit are not accompanied by requisite statutory declaration, the assessee is liable to be visited with penalty under Section 78(5) of the Act of 1994. In this view of the matter the order dated 13.08.2004, passed by the Deputy Commissioner (Appeals) as also the order dated 07.10.2005, passed by the Tax Board are liable to be quashed and set aside and the order of the assessing authority passed on 26.03.2001 is liable to be restored submitted counsel. Per contra, Mr. Sarvesh Jain, appearing for the respondent-assessee, would submit that the orders passed by the Deputy Commissioner (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion dated 30.03.2000 issued inter alia under Rule 53(1)(a) of the Rules of 1995. In my considered opinion, the judgment of the Deputy Commissioner (Appeals) as also Tax Board passed on 13.08.2004 and 07.10.2005 respectively founded upon the amendment to Section 78(5) of the Act of 1994 effective 22.03.2002 being prospective in nature are liable to be quashed and set aside in view of the fact that the Hon'ble Supreme Court in the case of Bajaj Electricals Limited (Supra) has held that the amendment to Section 78(5) of the Act of 1994 brought about on 22.03.2002 was merely clarificatory in nature and therefore retrospective. The obtaining legal position thus is that even at the time of goods in transit and the checking thereof on 22.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, PVC granules except when used as raw material for production of plastic goods. Entry 39 aforesaid carries a coma after the words plastic goods , is then followed by the words PVC granules . The subsequent words in the entry 39 except when used as raw material for production of plastic goods immediately following the words PVC granules would in my considered opinion only relate to PVC granules used as raw material for production of plastic goods. To my mind, the rule of last antecedent applies to the interpretation of entry 39 of notification dated 30.03.2000. Admittedly the goods in transit were not PVC granules and were PVC sheets which are in the nature of plastic goods. Consequently, there is no merit in the contention of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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