TMI Blog2016 (9) TMI 1085X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the order dt.03/07/2012 passed by the Rajasthan Tax Board, Ajmer, dismissing the appeal of the assessee. 2. Brief facts noticed for disposal of this petition are that on 20/07/1995 a vehicle bearing No.MKO-9507 was intercepted by the Anti Evasion Wing of the Revenue where the driver/incharge produced GR No.2112 dt.18/07/1995; Challan No.408 dt.18/07/1995 and Bill Proforma dt.17/07/1005 which was not clear and cuttings were there on it. The vehicle, inter-alia, contained 136.80 Qt. Of Sun Flower Oil which was being carried from Shahbad to Jaipur. The officers found discrepancies in the bills and also found that the declaration form ST-18-A was not available and thus there was violation of provisions of Sec. 22- A(7) of the Rajasthan Sales Tax Act. Therefore, a show cause notice was issued as to why penalty be not imposed. However, on 01/08/1995, the representative of the assessee appeared, gave guarantee bond from two guarantors and prayed for release of the goods and accordingly the goods were released. However, on the date fixed i.e. 05/08/1995 neither the assessee appeared nor any reply was filed on behalf of the assessee and accordingly the Assessing Officer (for short, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9507 which appears to have been received by Shri Sadhu Singh by putting thumb impression of Sadhu Singh. Counsel further contended that this show cause notice was not served or received on the assessee and thus it is in violation of the principles of natural justice. He drew attention of this Court towards the judgment of this Court in the case of Associated Soap Stone Distributing Co., Jaipur Vs. State of Rajasthan: (1972) 28 STC 699 and Rule 49 of RST Rules, 1995 and thus contended that the penalty being in violation of the principles of natural justice deserves to be quashed set aside. 7. Per-contra, ld. counsel for the Revenue contended that a security bond was filed by one Guruprasad, Power of Attorney Holder of M/s. ITC Agrotech Limited (assessee herein) dt.25/07/1995 alongwith two sureties namely; (1) Shri C.L. Saboo Director of M/s. Premier Peanut Limited, 100, Industrial Area, Jhotwara, Jaipur and (2) Shri S.C. Jain, Director of M/s. Shree Containers Ltd., Industrial Area, Durgapura, Jaipur. Subsequently thereto, a detailed reply was filed by counsel for the assessee dt.01/08/1995 and thus contended that the assessee was well aware of the impugned action having been t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts and circumstances, looses significance. In letter dt. 01/08/1995, counsel for the assessee though agrees to the show cause notice dt. 20/07/1995 having been issued to Shri Sadhu Singh S/o Labh Singh and states before the Officer that the show cause notice to the driver is not proper but nevertheless goes on supporting the claim of the assessee that the vehicle contained all necessary particulars, other bills and vouchers and tried to prove that there is no violation of provisions of Sec. 22-A(7) and thus no penalty was imposable. In my view, as observed herein before, once there is an appearance by the assessee pursuant to show cause notice, not only by filing a security bond to get the goods released but also filing reply to the very show cause notice, in the facts and circumstances, the service on the agent being driver/incharge can be deemed and said to be proper. 10. Now, taking the facts into consideration, admittedly, on the vehicle having been intercepted, no declaration form ST-18-A was produced nor any declaration form was produced later on before the AO while as per Sec. 22-A(7) of the RST Act,1954 carrying declaration form is mandatory. It would be appropriate to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer (supra) had an occasion to consider scope of Sec. 78(5) of the RST Act, 1994 which was with reference to the declaration form ST-18-A which is pari-materia to Section 22A(7) of the RST Act,1954. The said judgment also quoted in extenso the declaration form ST-18-A and ST-18-C and analyzed the form. The Apex Court also took into consideration Rule 53 and observed in Para 25 to 29 of the said judgment ad-infra:- 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 No. 18A/18C then strict liability comes in, in the form of Section 78(5) of the said Act. Breach of Section 78(2) imposes strict liability under Section 78(5) because as stated above goods in movement cannot be carried without Form No. 18A/18C. 26. We are not concerned with non-filing of statements before the A.O. We are concerned with the goods in movement being carried without supporting declaration forms. The object behind enactment of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not open to the consignee to keep the column in respect of the description of goods as blank. Even the column dealing with nature of transaction is left blank. The consignee is the buyer of the goods. He knows the descriptions of the goods which he is supposed to buy. There is no reason for leaving that column blank. therefore, there are no special circumstances in any case for waiver of penalty for contravention of Section 78(2). The assessees were fully aware that the goods in movement had to be supported by Form ST 18A/18C. Therefore, they made the goods travelled with the forms. However, the said forms are left blank in all material respects. Therefore, A.O. was right in drawing inference of mens rea against the assessees. 29. It has been repeatedly argued before us that apart from the declaration forms the assessees possessed documentary evidence like invoice, books of accounts etc. to support the movement of goods and, therefore, it was open to the assessees to show to the competent authority that there was no intention to evade the tax. We find no merit in this argument. Firstly, we are concerned with contravention of Section 78(2) which requires the goods in movem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra), provides for an opportunity, to be given to produce the required document and/or declaration forms complete in all respects when the goods enters or leaves the nearest check-post of the State. Sub-rule(2) of Rule 55 requires that verification or enquiry shall be completed within seven days from the date of issue of the direction, and for action, if any, warranted in the circumstances of the case, in pursuance to the direction given under sub- clause(a) of clause(4) of Section 78 of the RST Act, 1994, which provides that where any goods in movement, other than exempted goods, are without documents, or are not supported by documents as referred to in sub-section(2), or documents produced appear false or forged, the Incharge of the check-post or the officer empowered under sub-section (3), may direct the driver or the person incharge of the vehicle or carrier or of the goods not to part with the goods in any manner including by retransporting or rebooking, till a verification is done or an enquiry is made, which shall not take more than seven days. 34. The suspicion or doubt on the documents to be false or forged, per se, does not attract levy of penalty under sub-section ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorises the authority empowered, to make an enquiry of violation of Section 78(2), and not to adjudicate as to whether the mens rea was present in violation of sub-section (2) of Section 78, for imposing penalty under sub-section (5) of Section 78 of the RST Act, 1994. (iv) The mens rea is not required to be proved as necessary ingredient for imposition of penalty under sub-section (5) of Section 78, on proving violation of sub-section(2) of Section 78 of the RST Act, 1994. 15. This Court in the case of M/s Bishambhar Dayal Shankar Lal Vs. Assistant Commercial Taxes Officer, Alwar (SB Sales Tax Revision No.99/2006), decided on 27/09/2013 came to the same conclusion. That apart, this Court in the case of M/s Agrotech Foods Limited V/s The Assistant Commercial Taxes Officer, Flying (SB Sales Tax Revision Petition No.189/2012), in the identical facts and circumstances, has dismissed the petition of the assessee on 15/09/2016 and thus, the order passed by the Tax Board in the present matter, being just and proper, is not required to be interfered with. 16. As regards the judgment relied upon by counsel for the assessee in the case of Associated Soap Stone Distributing Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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