TMI Blog2011 (3) TMI 1549X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissed. - S.B. Sales Tax Revision Petition No. 265 of 2008 - - - Dated:- 31-3-2011 - DR. VINEET KOTHARI J. R.B. Mathur for the petitioner Vivek Singhal for the respondent JUDGMENT This revision petition has been filed by the Revenue against the order of the Tax Board dtd.6.8.2002 rejecting its appeal against the order of the Dy. Commissioner (Appeals) dtd. 8.5.2002 whereby both these Appellate Authorities held that the learned assessing authority was not justified in imposing penalty under Section 78(5) of the Act amounting to ₹ 1,95,019/- on the ground that the declaration in Form ST-18A accompanying the other relevant documents like Sale Invoice, Bill of Entry, Transport Receipt etc. was found blank in respect of column No.2 to 9 of the said declaration in ST 18A. The learned Tax Board relying upon the decision of this Court in the case of M/s Jitendra and Co. reported in RLW 2000(4) Raj. 69 set aside the said penalty on the ground that since the documents disclosing all the particulars about the columns unfilled in the declaration were available at the time of checking itself, even though the said declaration had a few columns blank, it would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we have emphasised the words material particulars in the present case. It is not open to the assessees to contend that in certain cases of inter-State transactions they were not liable in any event for being taxed under the RST Act, 1994 and, therefore, penalty for contravention of Section 78(2) cannot be imposed. As stated hereinabove, declaration has to be given in Form ST 18-A/18-C even in respect of goods in movement under inter-State sales. It is for contravention of Section 78(2) that penalty is attracted under Section 78(5). Whether the goods are put in movement under local sales, imports, exports or inter-State transactions, they are goods in movement, therefore, they have to be supported by the requisite declaration. It is not open to the assessee to contravene and say that the goods were exempt. Without disclosing the nature of transaction it cannot be said that the transaction was exempt. In the present case, we are only concerned with the goods in movement not being supported by the requisite declaration. Per contra Mr. Vivek Singhal, the learned counsel appearing for the respondent - assessee vehemently submitted that notwithstanding the production of declaratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under Section 6(2) of the CST Act. All the Dy. Commissioner (Adm.) shall ensure strict compliance of these directions in their respective zones. (ii) The learned counsel for the assessee, Mr. Vivek Singhal drew the attention of the Court towards Section 81 of the RST Act, 1994 and Rule 53 framed in exercise of powers under Section 81 of the RST Act, 1994 prescribing the furnishing of said declaration in form ST 18A and submitted that the words import from outside the State do not include within its ambit and scope, the direct import of goods from outside the country and it would include import of goods from outside the State of Rajasthan from other States of the Union of India only. Rule 53 as it existed at the relevant point of time in the year 1999 when the goods in the present case were checked by the concerned authority on 27.6.1999 vide notification No.SO 140 dtd.9.7.1998 reads as under: 53. Declaration required to be carried with the goods in movement for import within State: (1) (a) A registered dealer:- (i) who imports any taxable goods as may be notified by the State Government for sale, except when the goods are the goods of the class or classes specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present facts and circumstances and the orders of the Appellate Authorities in favour of the respondent - assessee do not require any interference by this Court. (iii) He also relied upon the decision of Rajasthan Tax Tribunal in the case of CTO V/s Abbas Khan reported in 1998 Tax World 13 in which dealing with the old provisions of Section 22A(7) of the RST Act, 1951 akin to Section 78(5) of the RST Act, 1994, the Rajasthan Tax Tribunal; a Tribunal constituted under Article 323B of the Constitution of India which was vested with the jurisdiction, as was available with the High Court for the period during which the said Tribunal existed, held in para 3 as under: 3. Admittedly, the goods in question were tax paid imported goods. As such they were not taxable under the Rajasthan Sales Tax Act. Therefore, the question of evasion of tax under the RST Act did not arise and the provisions of Section 22A, RST Act were therefore, not attracted. The question of imposing penalty under section 22A(7) RST Act therefore cannot arise. (iv) The learned counsel for the assessee also relied upon the decisions in the case of Primus Imaging Pvt. Ltd. V/s State of Assam reported in (2007)9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he country into local area. Fr. William Fernandez v. State of Kerala (1999) 115 STC 591 (Ker) followed. Fr. William Fernandez v. State of Kerala (supra) Where the appellants, non-resident Indians who imported to India motor vehicles they had used abroad, disputed the levy of entry tax in respect of their motor vehicles under the Kerala Tax on Entry of Goods into Local Areas Act, 1994, and filed writ appeals: Held, that the Kerala Tax on Entry of Goods Into Local Areas Act, 1994 was enacted to provide for the levy of tax on the entry of goods into local areas for consumption, use or sale therein. Clause (d) of section 2 defines entry of goods into local area , which means entry of goods from any place outside the State. Obviously, the Legislature was aware when it used the words from any place outside the State they did not mean to convey outside the country from abroad since the distinction between them is so obvious as not to have escaped notice. In clause (n) while defining the purchase value, no reference is made to the customs and other duties that an importer has to pay for clearance of the goods. Obviously to determine the purchase value, customs and other du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specifies that where the goods in question were directly imported from outside the country like from Japan in the present case, neither the goods not accompanied by the declaration form ST 18A were supposed to be detained nor the requirement of production of form ST 18A was to be insisted upon and such a dealer or importer were required to only furnish all the requisite documents in support of direct import of such goods including the customs clearance certificate, the registration certificate with the Ministry of Commerce as importer, documents having full description of the goods etc. There is no dispute in the present case that other relevant documents establishing such direct import of goods by the respondent - assessee from Japan apparently accompanied the said consignment while under transit from port of import, namely, Mumbai to Alwar. The said clarification issued on 8.2.2001, even though the import in the present case was in the year 1999, should be applicable as the clarification on the part of the Department cannot be said to be substantive law which will only have prospective application because by this Circular, the Department itself was clarifying the position of Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble Apex Court. The Hon'ble Apex Court was also not concerned in the said case of Guljag Industries (supra) with the case of direct import of goods from outside the country and from the facts of the said decision in the case of Guljag Industries (supra), it would appear that the goods in question were being imported from the State of Andhra Pradesh to the State of Rajasthan and that is why the question of practical difficulty in filling up the form ST 18A to be filled up by consignor from Andhra Pradesh was raised inter alia including the question of language problem in understanding Hindi language of form ST -18A by the consignor of Telugu speaking Andhra Pradesh. From this angle also, the said observations in para 29 of Hon'ble Apex Court in the case of Guljar Industries (supra) cannot be blindly applied to the facts of the present case as contended by learned counsel for the Revenue. On the other hand, the decisions relied upon by the learned counsel for the assessee quoted above throw light on the question directly involved in the case in hand before this Court. In the case of Primus Imaging Pvt. Ltd. (supra), the learned Single judge of Gauhati High Court wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, and the levy of tax on entry of goods into a local area, on the other, are covered by different entries in the Constitution and the incidence of taxation in both the cases is different. The restriction, imposed by article 286(1)(b) of the Constitution, is in respect of levy of tax on sale or purchase of goods and not as regards entry of the goods into a local area for consumption, use or sale therein and, hence, the contention of the petitioners that levy of entry tax on goods imported from outside the State is hit by article 286(1)(b) of the Constitution of India has no force and is misconceived. This aspect of the law can be examined from yet another angle. Article 286(1)(a) of the Constitution imposes restriction on the power of the State to levy tax on sale and purchase, where such sale or purchase takes place outside the State. Section 4 of the Central Sales Tax Act, 1956 provides as to when a sale or purchase of goods takes place outside the State. Section 3 of the Central Sales Tax Act provides as to when a sale or purchase of goods can be said to have taken place in the course of inter-State trade or commerce. There is no dispute that the State has no power to levy tax, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ET Act, does not take, within its sweep, a person importing goods from outside the country. Obviously, the Legislature had consciously used the words including a place outside the State , for they did not mean to convey outside the country since the distinction between the two is so obvious that the distinction between the two could not have escaped the notice of the law makers. A Division Bench of the Kerala High Court, in Fr. William Fernandez v. State of Kerala (1999) 115 STC 591, held that the words from any place outside the State will not mean outside the country and abroad. Similarly the Division Bench of Kerala High Court in the case of Fr. William Fernandez v. State of Kerala and ors. (supra), which was followed by the learned Single Judge of Gauhati High Court in the case of Primus Imaging Pvt. Ltd. (supra) vide aforesaid quoted portion held that entry of vehicle brought from abroad is outside the scope of Kerala Tax on Entry of Goods into Local Areas Act, 1994 and no such Entry Tax could be imposed. Likewise the words used in section 81 of the Rajasthan Sales Tax Act, 1994 stipulates that any registered dealer or any other person who intends to import or bring ..... X X X X Extracts X X X X X X X X Extracts X X X X
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