TMI Blog2017 (1) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... ient to hold that the same being not carried, penalty was inevitable. Petition dismissed - decided against petitioner. - S.B. Sales Tax Revision Petition No. 139 of 2014 - - - Dated:- 25-11-2016 - Jainendra Kumar Ranka, J. For the Petitioner : Devendra Kumar, Counsel For the Respondent : Tanvi Sahai, Counsel ORDER 1. The instant petition is directed against order dt 13.2.2014 passed by the Rajasthan Tax Board, Ajmer, in Appeal No.48/2009/Ajmer, whereby the appeal of Revenue has been allowed. Assessment year is 1999- 2000. 2. Brief facts noticed are that the petitioner is engaged in the business of transport and on 4.3.2000, vehicle bearing no.MP09 KB 4947, while it was moving from Mumbai to Ajmer, was intercepted at Ratanpur (Dungarpur) on Ahmedabad-Udaipur Road, wherein it was found loaded with 130 tyres and tubes. The driver/incharge produced builty no.25306 dt 3.3.2000, transport challan no.4471 dt 3.3.2000, a certificate in the name of transport company issued by Tyre India, Mumbai, and it was noticed by the Officer that the said tyres and tubes were purchased by the petitioner from M/s. Tyre India, Chemboor, Mumbai, for its own use. However, since t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner vehemently contended that the assessee is a transport operator, was not registered under the RST Act, 1994, and the tyres and tubes were brought and purchased from Mumbai for its own use in the various vehicles being run by the petitioner and they were not intended for sale. He contended that movement of goods was supported by all documents which was mandatory to carry, and that there was no necessity of carrying declaration form ST-18A or for that matter ST-18AA was also not required to be carried because it was for personal use and not intended for sale. Learned counsel also relied on the judgment of apex court rendered in the case of State of Rajasthan Another v. D.P. Metals (2002) 1 SCC 279, and also contended that the rectification application was beyond limitation and could not have been rectified and also relied upon Kailash Singh Rajput v. Ram Prakash AIR 1979 Allahabad 110, State of U.P. v. Aditya Kumar Gulab Shankar Another [1993] 90 STC 103, and Raja Malwinder Singh v. Union of India Anr (2005) 278 ITR 568 (P H). 6. Per contra, learned counsel for the Revenue contended that it is a finding of fact recorded by the Tax Board as well as the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho 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 ₹ 10,000/- or more, for use, consumption or disposal within the State; shall furnish or cause to be furnished a declaration in form ST 18AA [, completely filled in all respect in ink]. The counterfoil of the declaration shall be retained by such dealer or person and its portions marked Original or Duplicate shall be carried with the goods in movement [and in case the goods are transported through railways, such portion shall be accompanied with the goods during their movement from railway premises to the place of business]. (b) [Deleted] (c) The driver or the other person incharge of a vehicle or carrier of goods in movement shall carry with him the documents specified in clause (a) of sub-section (2) of section 78 and declaration prescribed in clause (a) or (b) of this sub-rule, in respect of the goods in movement and shall produce the same, suo motu before the in-charge of the entry check-post at the time of entry within the State or before the officer empowered under section 78, at the time of inspection under sub-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd (20) of rule 23 shall, in so far as may be mutatis mutandis, apply to the declaration Form ST 18A. (6) Where form ST 18A is out of print or in short supply or otherwise not available in Zone, the Commissioner may issue such instructions as he deems proper in view of the circumstances of the case. 9. On perusal of the above and in particular subclause (b)(iii) of clause (1) it prescribes that it covers person other than a registered dealer as well and in the instant case, if the goods are of a value exceeding ₹ 10,000/- or more for use, consumption or disposal within the State, declaration form ST-18AA completely filled in all respect in ink, was required to be carried. 10. In the instant case, the vehicle was intercepted on 4.3.2000. R.53(1)(b)(iii) is applicable in the instant case, where it was mandatory for a person carrying goods above ₹ 10,000/- irrespective of status who was required to carry declaration form ST- 18AA and, therefore, at the time when the vehicle was moving, the said provision was in force and was deleted on 24.4.2000, and in my view the finding of the AO as well as Tax Board, is just and proper. Once the above rule prescribes that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e years from the date of the order sought to be rectified, and in the instant case, the argument of the learned counsel for the assessee in my view is not proper as the original order of DC(A) is dt 28.3.2005, and the application for rectification was moved by the AO on 29.9.2007 i.e. within the period of three years and even the DC(A) decided the Rectification Application on 20.8.2008, within the period of one year prescribed u/s 37 of the Act, therefore, the judgments relied upon by the learned counsel for the assessee, in the light of plain language of this section itself, are distinguishable. Rather the judgment in the case of Kailash Singh Rajput v. Ram Prakash (supra) of the Allahabad High Court, observes that review is even permissible if it is within the period of limitation. 15. In the case of State of U.P. v. Aditya Kumar Gulab Shankar (supra), the apex court upheld the view that since the application for rectification itself was made beyond the three years' period, the question of applicability of proviso was not available. 16. The judgment in the case of Raja Malwinder Singh v. UOI (supra) of the Punjab Haryana High Court, was also a case where it was found ..... X X X X Extracts X X X X X X X X Extracts X X X X
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