TMI Blog2016 (11) TMI 1195X X X X Extracts X X X X X X X X Extracts X X X X ..... t declaration form can also be said to be incomplete or not duly filled in and is not sufficient compliance of the mandate of law. The judgment of Guljag Industries [2007 (8) TMI 344 - SUPREME Court] of which relevant paras have been reproduced hereinbefore, is applicable in the facts and circumstances of the instant case and when the additional feature of punching which has been noticed hereinbefore, the declaration form can be said to be deficient in the light of the judgment rendered in the case of Guljag Industries. The declaration form has to be complete in all respect and finding the subsequent form even incomplete in respect of material particulars and punching, the order of Tax Board is reversed and that of the AO as well as Dy. Com. (Appeals), are upheld - petition succeeds - decided in favor of Revenue. - S.B. Sales Tax Revision Petition No. 43/2012 - - - Dated:- 23-9-2016 - Jainendra Kumar Ranka, J. For the Petitioner : Meenal Ghiya For the Respondent : Sarvesh Jain ORDER 1. The instant petition is directed against order dated 27.6.2011 passed by the Rajasthan Tax Board, Ajmer, in Appeal No.2324/2008/Jaipur, by which appeal of the respondent h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, since the assessee produced declaration form only with reference to 185 bundles, therefore, for the balance there being no declaration form, penalty was sustained. 4. Learned counsel for the Revenue vehemently contended that the order of Tax Board is perverse and is required to be interfered with, particularly in view of the fact that both the AO as well as Dy. Com. (Appeals) found as a finding of fact that the material particulars were found left blank and it clearly proved that the goods were being transported with the intention of evasion of tax. Learned counsel further contended that merely producing another declaration form is of no avail for compliance of the mandate of law is required to be fulfilled. Rule 53 mandates that there should be sufficient compliance in letter and spirit and such declaration form should have been carried and ought to have been produced at the time of interception of the vehicle. She further contended that even otherwise the subsequent declaration form, if also considered, then too it is defective as both, AO as well as the Dy. Com. (Appeals) have held that it was not punched and this was an additional feature of punching the declaration form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who exercises his powers and discharges his duties at such check-post or barrier by way of inspection of documents produced and goods being moved shall be its Incharge. (2) The owner or a person duly authorised by such owner or the driver or the person Incharge of a vehicle or carrier or of goods in movement shall- (a) Stop the vehicle or carrier at every check- post or barrier, and while entering and leaving the limits of the State bring and stop the vehicle at the nearest check-post or barrier, set-up under sub-section (1); (b) carry with him a goods vehicle record including challans and bilties , invoices, prescribed declaration forms and bills of sale or dispatch memos; (c) produce all the documents including prescribed declaration forms relating to the goods before the Incharge of the check-post or barrier; (d) furnish all the information in his possession relating to the goods; and (e) allow the inspection of the goods by the Incharge of the check-post or barrier or any other person authorised by such Incharge. Explanation: For the purpose of this Chapter 'goods in movement' shall mean- (i) the goods which are in the possession o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts or declaration, a penalty equal to thirty per cent of the value of such goods. Rule 53 of the VAT Rules: 53. Declaration required to be carried with the goods in movement for import within the State.- (1) A registered dealer, (i) who import from any place outside the State, any taxable goods, as may be notified by the State Government, for sale; or (ii) who receives any taxable goods as may be notified by the State Government, consigned to him from outside the State or by way of branch transfer/depot transfer/stock transfer; or (iii) who intends to bring, import or otherwise receives any taxable goods as may be notified by the State Government, from outside the State for use, consumption, or disposal otherwise than by way of sale; shall furnish or cause to be furnished a declaration in Form VAT-47, completely filled in all respect in ink and ensure that the value, date and month or use of such Form shall be punched at the specified place provided for in the Form. The counterfoil of the declaration Form shall be retained by such dealer and its portions marked as 'Original' and 'Duplicate' shall be carried with the goods in m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority or the authorized officer. (3) If the declaration Form referred to in sub- rule (1) in respect of the goods in movement has already been submitted to the assessing authority or the officer authorized under sub-section (4) of section 76, the owner or a person duly authorised by such owner or the driver or person Incharge of the vehicle or carrier or of the goods shall, on inspection by an officer authorized under sub-section (4) of section 76, at any subsequent place, produce the countersigned and sealed copy of the aforesaid declaration along with other documents specified in clause (b) of sub-section (2) of section 76. Explanation: For the purpose of this rule, 'taxable goods' means all goods except the goods which are exempted from tax in accordance with the provisions of the Act. 8. Section 76 of the VAT Act takes into consideration the movement of goods while in transit and it envisages that the owner, driver or incharge of the vehicle, which is carrying on certain goods, shall stop the vehicle or carrier at every check post or barrier while entering and leaving the limits of the State and such vehicle shall carry a goods vehicle record including challa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents that breach referred to in Section 78(5) can be regarded as technical or venial. Once the ingredients of Section 78(5) are established, after giving a hearing and complying with the principles of natural justice, there is no discretion not to levy or levy lesser amount of penalty. If by mistake some of the documents are not readily available at the time of checking, principles of natural justice may require some opportunity being given to produce the same. This provision cannot be read as to imply that the penalty of 30% is the maximum and lesser penalty can be levied. The legislature thought it fit to specify a fixed rate of penalty and not give any discretion in lowering the rate of penalty. The penalty so fixed is meant to be a deterrent and we do not see anything wrong in this. The quantum of penalty under the circumstances enumerated in Section 78(5) cannot, in our opinion, be regarded as illegal. The legislature in its wisdom has thought it appropriate to fix it at 30% of the value of goods and it had the competence to so fix. As held by this Court in Rai Ramakrishna v. State of Bihar at SCR p 910: The objects to be taxed so long as they happen to be within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the civil liability as in the case of prosecution. Section 78(2) is a mandatory provision. If the declaration Form 18A/18C does not support the goods in movement because it is left blank then in that event Section 78(5) provides for imposition of monetary penalty for noncompliance. 27. Default or failure to comply with Section 78(2) is the failure/default of statutory civil obligation and proceedings under Section 78(5) is neither criminal nor quasi-criminal in nature. The penalty is for statutory 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 carried with Form No. 18A/18C. The modus operandi adopted by the assessees itself indicates mens rea. This is not the case where goods in movement are carried without the declaration forms. In the present matter, as stated above, goods in movement were carried with the declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le turnover as defined under Section 2(42) of the said Act. therefore, we have emphasized the words material particulars in the present case. It is not open to the assessees to contend that in certain cases of interstate 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 18A/18C even in respect of goods in movement under interstate 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 interstate 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. 13. Both the judgments have, however, held that if the declaration form is not found or/and found ..... X X X X Extracts X X X X X X X X Extracts X X X X
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