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2016 (6) TMI 858 - RAJASTHAN HIGH COURT

2016 (6) TMI 858 - RAJASTHAN HIGH COURT - [2016] 88 VST 201 (Raj) - Levy of penalty - vehicle was not carrying declaration Form ST-18A - violation of 78(2) read with Rule 53 of the Rajasthan Sales Tax Act, 1994. - Held that:- non carrying of declaration Form ST-18A and non filing of material particulars and it has also come to the conclusion that mens rea is not essential in such proceedings. - In the light of above non carrying of declaration form is a serious infirmity and also when it was not .....

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gistration No. RJ-31/G-1043 was intercepted by the Officer of the Anti Evasion Wing Flying Squad, Kota wherein it was found that the vehicle was carrying 234 bags of Binola and the same were being transported from Saindwa (M.P.) to Kishangarh Renwal (Raj.). On asking the In-charge/driver of the vehicle produced GR No.496 dt.05/01/2001 as also bills and vouchers and other documents. However the said vehicle was not carrying declaration Form ST-18A and it was noticed by the Authorized Officer that .....

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sioner (Appeals), however, on the premise that the goods were transported prior to 22.03.2002, the penalty could have been imposed only on In-charge/driver of the vehicle, the penalty was deleted. 3. The Tax Board in the light of judgment of the Tax Board (full Bench) in the case of Assistant Commercial Tax Officer, Flying Squad Vs. M/s. Bajrang Timber Mart, Ladnu, Nagaur decided on 22/12/2005, where it was held that when other documents, bills, vouchers proved that all particulars were noted in .....

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on Form ST-18A was not found and despite specific show cause notice having been issued, it was not produced even later on and the respondentassessee agreed that there was mistake in carrying of declaration Form ST-18A and voluntarily accepted about the imposition of penalty and passing appropriate order on the same day i.e. 10.01.2001 when ample opportunity was granted. She further contended that the finding of the Tax Board is perverse as prior to 22.03.2002, the revenue was well justified in i .....

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r Bench of this Court in the case of ACTO Vs. M/s. Indian Oil Corporation Ltd. (2015) 82 VST 200 (Raj.), has held that mens-rea in such cases is not essential, She further contended that the order of the Tax Board is perverse and deserves to be reversed. 5. No-one has put in appearance on behalf of respondent despite service. 6. I have considered the arguments advanced by the counsel for the petitioner and have perused the impugned order and other orders. 7. It is an admitted case that at the ti .....

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s contrary to its own observation on page-1 of the impugned order as well as in the first para of page-2 of the impugned order and also specific finding of the Assessing Officer so also the Dy. Commissioner (Appeals). Accordingly, the petition is being disposed of as if there is no declaration Form ST-18A placed by the respondent-assessee before the Assessing Officer despite specific notice, as well as before the higher authorities even after show cause notice. The claim of the Tax Board can be .....

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en imposed prior to 22.03.2002, is contrary to the law laid down by the Hon'ble Apex Court in the case of Bajaj Electricals Limited (supra):- 28. If one reads Sub-section (5) of Section 78 in its entirety with Rule 53 of the 1995 Rules, it is clear that penalty was liable to be imposed for importation of any taxable goods for sale without furnishing a declaration in Form ST 18-A completely filled in all respects. The duty to fill and furnish the said Form is imposed on the purchasing dealer. .....

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ho is entitled to seek release under Section 78(4) on giving security. It is the owner who is entitled to hearing under Section 78(5) and, therefore, the expression "person in-charge of the goods" under Section 78 (5) would include the owner. Moreover, under Section 78(2) the words used are "person in-charge of a vehicle or carrier of goods in movement" whereas the words in Section 78(5) which comes after Subsection (4) refer to "person in-charge of the goods". The .....

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s Court in the case of Guljag Industries (supra) would squarely apply to the facts of the present case. In fact, our view in the case of Guljag Industries (supra) finds support from the amendment made in Section 78(5) vide Act 7 of 2002 w.e.f. 22.3.2002 by which the expression "person in-charge of the goods" under the old Section 78(5) is substituted by the words "the owner of the goods or a person authorized in writing by such owner or person in-charge of the goods". It is o .....

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re concluding, on facts, we may point out that before the A.O. the respondent contended that filling of the Form ST 18-A was the responsibility of the transporter and the consignor (which argument presupposes that the respondent had not filled the particulars in Form ST 18-A) whereas before the Dy. Commissioner (A) a Form was produced purportedly sent to the consignor which was not accepted. According to the Commissioner(A) it was an after-thought. Before the Tax Board it was submitted by the re .....

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ails duly filled in by the consignor. If one sees the Form it is clear that it shall be the duty of the consignee or his agent (transporter) to see that the consignor fills the Form. Therefore, on facts we are satisfied that the said Form in ST 18-A though signed, remained incomplete. The details required were never supplied. Hence penalty was correctly levied under Section 78 (5) of the 1994 Act. Thus the judgment of M/s. Bajrang Timber Mart (supra) stands reversed. 8. The Hon'ble Apex Cour .....

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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 indicated by the consignee. Similarly, the consignee has to indicate the description of the goods. In the present case the consignee (the assessee) has left the requisite columns blank. Part-B has to be filled in by the consignor. Part-B requires the consignor to give the estimated value of goods .....

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aningless. There are no facts given in Part-A. There is no identity of the goods transported. There is no description of the goods in movement. As stated above, the original has to be placed before the A.O. by the officer at the check-post. If the form which ultimately goes to the A.O. is blank in all material respects then it is impossible for the A.O. to assess the dealer and it is this practice which has resulted in loss of revenue in crores to the State. Without description of the goods impo .....

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by duly filled in Form ST 18-A/18-C. Therefore, there was contravention of Section 78(2) of the RST Act 1994. 25. There is dichotomy between contravention of Section 78(2) of the said Act which invites strict civil liability on the assessee and the evasion of tax. When a statement of import/export is not filed before the A.O. it results in evasion of tax, however, when the goods in movement are carried without the declaration Form ST 18-A/18-C then strict liability comes in, in the form of Sect .....

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cent of the estimated value is to provide to the State a remedy for the loss of revenue. The object behind enactment of Section 78(5) is to emphasise loss of revenue and to provide a remedy for such loss. It is not the object of the said Section to punish the offender for having committed an economic offence and to deter him from committing such offences. The penalty imposed under the said Section 78(5) is a civil liability. Willful consignment is not an essential ingredient for attracting the c .....

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ory offence. Therefore, there is no question of proving of intention or of mens rea as the same is excluded from the category of essential element for imposing penalty. Penalty under Section 78(5) is attracted as soon as there is contravention of statutory obligations. Intention of parties committing such violation is wholly irrelevant. 28. Moreover, in the present case, we find that goods in movement were carried with Form ST 18-A/18-C. The modus operandi adopted by the assessees itself indicat .....

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