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TMI Blog2011 (3) TMI 1549X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 taken as substantial compliance of the statutory provisions of Section 78(2) of the Act and therefore, imposition of penalty was not justified. The first appellate authority, namely, the Dy. Commissioner (Appeals) in his order dtd. 8.5.2002 inter alia also found the goods in question, namely, the motor parts were imported by the respondent - assessee from Japan under Bill of Entry for home consumption No.5587 and 5602 along with Bilty No.72151 and 72152 dtd.23.6.1999 and the declaration form ST 18A No.1108/20 and 1108/21 in which columns No.2 to 9 were found to be blank. A contention was raised before the learned Dy. Commissioner (Appeals) also that on such imported goods from outside the country, namely, Japan, there was no requirement in law to furnish declaration form ST-18A and relying upon the decision of Sales Tax Tribunal in the case of CTO V/s Abbas Khan reported in 1998 Tax World 13, the learned Dy. Commissioner (Appeals) also set aside the said penalty. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 declaration in the form ST-18A, which was sent by the respondent - assessee to its clearing and forwarding agent at Mumbai and which accompanied back the imported goods, namely, the motor-parts from Mumbai to Alwar, the place of business of assessee of the assessee, the respondent - assessee rightly contended before the learned Dy. Commissioner (Appeals) and again before this Court in the present revision petition filed by the Revenue that requirement of form ST-18A being furnished with such consignment of imported goods from Mumbai to Alwar was not there at all. The contentions of the learned Counsel for the respondent - assessee can be summarized thus: (i) The petitioner - Commercial Taxes Department of Government of Rajasthan itself has issued a clarification or Circular on 8.2.2001 No.F.1/ST-18/Kar.Niti/ACCT/AE/2001/282 and has clarified that in case of registered dealer of the State, which is also registered with the Ministry of Commerce, Government of India as an importer is not r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 specified in the certificate of registration under the Central Sales Tax Act, 1956 of the registered dealer purchasing the goods and are purchased for mining or in generation or distribution of electricity or any other form of power; or (ii) who receives any goods as may be notified by the State Government, consigned to him from outside the State; or (iii) who intends to bring, import or otherwise receives any goods from outside the State, as may be notified by the State Govt., of the value of Rs. 10,000/- or more for use, consumption or disposal otherwise 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. The counterfoil of the declaration shall be retained by such dealer and its portion marked "Original" and "Duplicate" shall be carried with the goods in movement." Section 81 of the RST Act, 1994 reads as under: "81. Import of goods into the State or export of goods outside the State:- (1) Any registered dealer or any oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot 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 VST 528 (Gauhati) and Fr. William Fernandez V/s State of Kerala and ors. reported in (1999) 115 STC 591 (Kerala). Relevant portions of the said judgments are quoted below for ready reference: Primus Imaging Pvt Ltd (Supra) "On the question whether the State is competent to levy entry tax on goods imported into local area from outside the country: Held, (i) that levy of tax on sale or purchase of goods and the levy of tax on entry of goods into a local area 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 on the power of the State is in respect of the levy of tax on sale or purchase of goods and not as regards entry of goods into a local area for consumption, action of the State Government in imposing entry tax on goods imported from outside the country to the local area is in violation of article 286(1)(b) of the Constitution of India is misconceived. (ii) That the language of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 duties are not to be reckoned for the levy of tax under the charging section 3 of the Act. Moreover there is nothing in clause (g) to indicate that it takes in a person who imports goods to local areas from abroad. Consequently entry of vehicles brought from abroad is outside the scope of the Act and, therefore, vehicles brought from abroad are not liable to entry tax under the Act." I have heard the learned counsels at length and given my thoughtful consideration to the relevant statutes and case laws cited at the Bar. The sheet anchor of contention of the learned counsel for the Revenue, Mr. R.B. Mathur is that para 29 of the judgment of the Hon'ble Apex Court in the case of Guljag Industries V/s CTO (supra) quoted above, wherein the Hon'ble Apex Court has observed that for contravention of Section 78(2), the penalty under Section 78(5) is attracted and whether the goods are put in movement under local sales, imports, exports or inter-State transactions, they are goods in movement and therefore, they have to be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid to be substantive law which will only have prospective application because by this Circular, the Department itself was clarifying the position of Rule 53 as it existed in the year 1999 at the time of import by the respondent - assessee. It is well settled law that procedural amendment or clarifications have a retrospective operation, whereas substantive amendment in law has a prospective operation, unless specifically made to have retrospective operation. In the face of said clarification, it is difficult to reverse the orders of the appellate Authorities below and restore the penalty in question in the light of aforesaid obiter of Hon'ble Apex Court in para 29 in the case of Guljag Industries (supra). Moreover, the aforesaid observations of the Hon'ble Apex Court in para 29 also have to be read in context of observations made in para 24 of the same judgment, which is also quoted below for ready reference: "24. Form ST 18-A, as quoted above, is in two parts. Part A has to be filled in by the consignee. Part B has to be filled in by the consignor. The nature of the transaction as to whether it is by consignment or by depot transfer or by inter-State sale has to be indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... volved 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 while holding that the State Legislature had power to impose entry tax on the goods imported from outside the country while effecting entry of such goods within the State by virtue of Entry 52 of List II of 7th Schedule to the Constitution of India, held that the said Entry Tax could not be imposed in the case of direct import by virtue of Article 286(1)(b) of the Constitution of India, which empowers only the Union Government and not the State Government to enact the law for imposition of tax on the sale or purchase of goods where such sale or purchase takes place (vide clause b) in the course of import of goods into or export of goods out of territory of India. In the said case, elaborating the principles of import of Article 286 and as aforesaid and distinguishing the concept of Entry Tax from the concept of levy of tax on sale or purchase of goods, the learned Single Judge held that the Entry Tax in the said case of import could be imposed by the State Government. However, in view of words "including a place outside the State" used in Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, when the sale or purchase of goods takes place in the course of inter-State trade or commerce. When the goods enter into a local area from outside the State pursuant to a sale, the same amounts to an inter-State sale and purchase and the State has no power to impose levy on such sale or purchase. If the contention of the petitioners is accepted, then, the State cannot have any power to levy entry tax, on the entry of the goods into any local area from outside the State, which may be brought into the State by virtue of sale and purchase thereof and the same thereby will also be hit by article 286(1)(a) of the Constitution of India. But since the restrictions, imposed by article 286, are only on the levy of tax on the sale and purchase of goods, the State is competent to levy entry tax by virtue of entry 52 of List I of the Seventh Schedule to the Constitution of India on the goods imported into any local area from outside the State for use, consumption or sale therein. In view of what have been pointed out above, there is no merit in the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 81 of the Rajasthan Sales Tax Act, 1994 stipulates that any registered dealer or any other person who intends to import or bring any goods or otherwise receives within the State of Rajasthan goods a may be notified by the State Government from outside the State for sale, use, consumption or for other disposal in the State shall unless otherwise prescribed, obtain a prescribed declaration form from the prescribed authority and shall cause it to be carried with the goods as part of the documents specified in sub-section (2) of Section 78. Under this provisions only, Rule 53 and form ST 18A have been notified by the State Government. This Court is, therefore, inclined to take a view that the words "from outside the State" employed in section 81 of the Act shall not cover within its ambit and scope "from outside the country". Consequently, Rule 53 which also reiterates these words "from outside the State" cannot go beyond or enlarge the scope of Section 81 of the Act and requirement of Form ST-18A even in the case of direct import from outside the country cannot be inferred merely in view of aforesaid obiter of Hon'ble Apex Court in para 29 of the judgment, particularly, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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