TMI Blog2007 (8) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... resh Kumar, Praveen Charturvedi, H.K. Puri, N. Ganapathy, Satyendra Kumar, Gopal Sankaranarayanan, Vikas Mehta, Punit Jain, Sushil Kumar Jain, Christi Jain, H.D. Thanvi and Sarad Singhania.Counsel appearing for the parties. Civil Appeal No. 5197 of 2005, Civil Appeals Nos. 4412, Civil Appeals Nos. 4413, Civil Appeals Nos. 4414, Civil Appeals Nos. 4415, Civil Appeals Nos. 4416, Civil Appeals Nos. 4417, Civil Appeals Nos. 4418, Civil Appeals Nos. 4419, Civil Appeals Nos. 4420, Civil Appeals Nos. 4421, Civil Appeals Nos. 4422, Civil Appeals Nos. 4423, Civil Appeals Nos. 4425, Civil Appeals Nos. 4426, Civil Appeals Nos. 4429, Civil Appeals Nos. 4430, Civil Appeals Nos. 4431, Civil Appeals Nos. 4432, Civil Appeals Nos. 4433, Civil Appeals Nos. 4434, Civil Appeals Nos. 4435, Civil Appeals Nos. 4436, Civil Appeals Nos. 4437, Civil Appeals Nos. 4439, Civil Appeals Nos. 4440, Civil Appeals Nos. 4441, Civil Appeals Nos. 4442, Civil Appeals Nos. 5210, Civil Appeals Nos. 5211, Civil Appeals Nos. 5212, Civil Appeals Nos. 5213, Civil Appeals Nos. 5214, Civil Appeals Nos. 5215, Civil Appeals Nos. 5216, Civil Appeals Nos. 5217, Civil Appeals Nos. 5218, Civil Appeals Nos. 5219, Civil Appeals No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as M/s. Guljag Industries (assessee-appellant herein). Along with the goods, Form ST 18A No. 236084 was also found in which the goods transported was not declared though the same was duly signed. Under the above circumstances the Assessing Officer came to the conclusion that there was a contravention of the provisions of section 22A(3) of the Rajasthan Sales Tax Act, 1954 (for short, "RST Act, 1954") read with rule 62A(3) of the Rajasthan Sales Tax Rules, 1955 (for short, "RST Rules, 1955"). He accordingly issued notice under section 22A(7) of the Rajasthan Sales Tax Act, 1954 calling upon M/s. Guljag Industries to show cause why penalty was not leviable for violation of section 22A(3) of the Rajasthan Sales Tax Act, 1954. In response to the said notice M/s. Guljag Industries submitted that there was mistake in filling the declaration form and, therefore, there was no intention of tax evasion. It was further submitted that the said declaration Form ST 18A (Form No. 18A) was supposed to be filled in by the consignor but due to lack of knowledge of Hindi language the same could not be filled in by the consignor. The Assessing Officer did not accept the explanation given by M/s. Gul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the States, namely, Andhra Pradesh (Vishakapattanam) and Rajasthan, there are Hindi-speaking persons. In the circumstances, the learned single judge held that the form was deliberately not filled in which indicated an intention of the assessee M/s. Guljag Industries to evade the tax. Accordingly, the order of the Board was set aside. Aggrieved by the order passed in revision by the single judge the assessee (M/s. Guljag Industries) has come to this court by way of Civil Appeal No. 5197 of 2005. In Civil Appeal No. 5240 of 2005- Assistant Commercial Taxes Officer v. Guljag Industries Ltd., preferred by the Department the facts are as follows. On November 1, 1990, at Abu Road check-post, a vehicle was checked which was carrying goods. On search the driver furnished GR No. 1 dated October 31, 1990, issued by M/s. Delhi-Bombay Road Lines. The consignment was shown to be M/s. Sumit Marbles, Abu Road. There was Bill No. 122 dated October 31, 1990. That bill referred to 50.31 sq. meters of granite priced at Rs. 34,494 and the name of the recipient was shown M/s. Sri Parashwanath Granites. On verification of the vehicle, the goods were found to be more than the quantity shown in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f he fails to produce the documents accompanying the goods under section 22A(3) of the Rajasthan Sales Tax Act, 1954. According to the Tribunal, once the offence is complete subsequent furnishing of the documents even if bona fide will not relieve the owner of the goods from liability of penalty. This decision of the Tribunal was challenged by M/s. Sri Parashwanath Granites. By judgment dated June 2, 2004, the High Court held that the levy of penalty was not automatic in the case where the goods in movement are found to be unaccompanied by the required documents. According to the High Court, the question of levy of penalty would arise only before the goods are delivered to the consignee and if it is found that the goods are in movement unaccompanied with documents. On facts the High Court found that if for some reason the driver failed to produce these documents at the checkpost which were subsequently produced and which were not false or forged, it could not be said that there was intention to evade the tax. The High Court held that merely because the driver had not shown the documents given to him by the assessee, could not make the assessee guilty of contravention. Consequently, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he State it is necessary so to do, it may, by notification in the Official Gazette, direct the setting up of a check-post or the erection of a barrier or both at such place or places as may be specified in the notification: Provided that the Commissioner may not direct the setting up of a check-post or the erection of a barrier for a period exceeding six months. (2) At every check-post or barrier set up or erected under sub-section (1) or at any other place when so required by any officer empowered by the State Government in this behalf, the driver or any other person in charge of a vehicle, boat or animal shall stop the same and keep it stationary so long as may reasonably be necessary and allow the officer-in-charge of the check-post or barrier or the officer empowered as aforesaid to examine the goods carried in or on such vehicle, boat or animal and inspect all records relating to the goods carried which are in the possession of such driver or other person in charge, who shall, if so required, give his name and address and the name and address of the owner of the vehicle, boat or animal and also the names and addresses of the consignors and the consignees, if any, and in ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods the sale or purchase of which by dealers in general is exempt from tax without any condition or on the sole condition that an exemption certificate, with or without payment of fee, is obtained or the goods are recorded in the registration certificate of the dealer claiming the exemption. Explanation II.- For the purpose of this section the goods under transport means goods which have been handed over to a carrier and complete delivery thereof has not been taken from such carrier. Explanation III.- 'Carrier means any person or agency who undertakes to carry or transport goods from one destination to another. (7)(a) The officer-in-charge of the check post or barrier or any other officer not below the rank of an Assistant Commercial Taxes Officer, empowered in this behalf may, after giving the owner or person in charge of the goods a reasonable opportunity of being heard and after holding such further enquiry as he may deem fit, impose on him for possession of goods not covered by goods vehicle record, and other documents prescribed under sub-section (3) or for submission of false declaration or documents, a penalty equal to five times of the rate of tax notified under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on furnishing of security of an amount equal to the estimated value of the goods to be released if he considers it necessary so to release the goods. (8) All provisions of this section shall apply mutatis mutandis to goods and animals liable to tax under this Act which may be carried by any means of transportation other than those specified in sub-section (2). (9) An officer empowered under this section shall have the power to inspect goods under transport including the documents and records relating thereto, and may direct a carrier not to part with the goods including retransporting or rebooking till such verification is done or such enquiry is made as is deemed necessary by such authority. (10) No order of penalty under this section shall be quashed or deemed to be void or voidable for want of seizure or mistake, defect or omission in seizure." We also quote hereinbelow rule 62A of the RST Rules, 1955, which reads as under: "62A. Documents prescribed under section 22A(3).- (1) The owner or person in charge of a vehicle, boat or animal shall carry with him a bill of sale or dispatch memo, and declarations as provided under the Act and Rules: Provided that no such bil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r person for such use on his behalf. (c) If any Form ST 18 obtained under clause (a) is lost, destroyed or stolen, the person concerned shall immediately report in writing in this behalf to the officer from whom such form was obtained. (d) The application to obtain Form ST 18 under clause (a) shall be rejected if the Commercial Taxes Officer is satisfied that such form is not required for bona fide use under the said clause. (3) A registered dealer,- (a) who imports any goods as notified by the State Government for sale, use in the manufacture or processing of goods for sale or in mining or generation or distribution of electricity of any other form of power or packing of goods for sale; or (b) who receives any goods consigned to him from outside the State for sale, shall make and furnish or cause to be furnished declaration in Form ST 18A. The counterfoil of the declaration shall be retained by such dealer and its portion marked original and duplicate shall be produced before the officer-in-charge of the check-post who shall retain such original portion and return such duplicate portion duly sealed in token of having verified it to the person producing it. Such duplica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by a dealer and after making such enquiry as he may consider necessary, is satisfied that the dealer is not in a position to furnish all or any of the declaration referred to in sub-rule (1) above, on account of loss of such declaration(s), subject to the conditions that the application is made within 45 days of such event supported by the evidence of loss of such declaration form: Provided that an application under the preceding proviso may be made up to December 31, 1989, in relation to riots occurred in Makarana Circle in March, 1989. (1a) A dealer who claims concession from payment of tax on the sale of raw material to any notified industry under section 5CC or to any manufacturer under any notification issued under section 4(2) shall in respect of such sale obtain a declaration from the purchasing manufacturer in Form 17A and shall, file such declaration before or at the time of assessment unless earlier required by the assessing authority and also submit a separate list of such sales in Form ST 16: Provided that no declaration shall cover more than one transaction except where the total amount covered by one declaration does not exceed Rs. 2 lakhs for all the trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claration form is issued by the assessing authority shall either directly or through any other person transfer the same to any other person. (6) The State Government may, by notification, declare that forms of a particular series, design or colour shall be deemed as obsolete and invalid for use with effect from such date as may be specified in one notification. (7) A dealer who claims to have made such sales as are envisaged in sub-rule (1) or (1a) or (1b) to another dealer shall in respect of such claim, produce before the assessing authority the portion marked 'original' of the declaration received by him from the purchasing dealer. The assessing authority may in his discretion, or in case of loss of the original foil of the declaration may direct the selling dealer to produce for inspection or record the portion of the declaration marked 'duplicate'. (8) No purchasing dealer shall give, nor shall a selling dealer accept any declaration except in a form obtained by the purchasing dealer, on application from the assessing authority and not declared obsolete and invalid by the State Government under the proviso to sub-rule (6). Every declaration form obtained from the assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation. (c) If the applicant for declaration forms has at the time of making the application defaulted in payment of any outstanding demand or in paying tax according to sub-section (2A) of section 7 or in furnishing any return or returns together with the receipted challan or challans showing payment of the tax due from him according to such return or returns for the furnishing of which prescribed date or the extended date or dates, if any, have already expired, the assessing authority shall withhold the issue of declaration form to him until such time as he: (i) deposits the outstanding demand; (ia) pays tax according to sub-section (2A) of section 7 of the Act; (ii) furnishes such return or returns, together with such receipted challan or challans; and (iii) furnishes any other return or returns together with the receipted challan or challans showing payment of the tax due according to such return or returns for the furnishing of which the prescribed date or dates or the extended date or dates, if any, may have expired after the date of the application: Provided that in a case coming under this clause, the assessing authority may, instead of withholding the declarati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pection of documents produced and goods being moved, shall be its in charge. (2) The driver or the person in charge of a vehicle or carrier or of goods in movement shall,- (a) carry with him a goods vehicle record including 'challans' and 'bilties', bills of sale or despatch memos and prescribed declaration forms; (b) stop the vehicle or carrier at every check-post set up under sub-section (1); (c) produce all the documents including prescribed declaration forms relating to the goods before the in charge of the check-post; (d) give all the information in his possession relating to the goods; and (e) allow the inspection of the goods by the in-charge of the check-post or any other person authorised by such in-charge. Explanation.- For the purposes of this Chapter,- (i) 'vehicle or carrier' shall include any means of transportation including an animal to carry goods from one point to another point; (ii) 'goods' shall include animals also; and (iii) 'goods in movement' shall means- (a) the goods which are in the possession or control of a transporting agency or person or other such bailee; (b) the goods which are being carried in a vehicle or carrier belonging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st therein the said in-charge or the officer on being satisfied may permit him to be impleaded as a party to the case; and thereafter, all the provisions of this section shall mutatis mutandis apply to him. (7) The in-charge of the check-post or the officer empowered under sub-section (3) may release the goods to the owner of the goods or to anybody else duly authorised by such owner, if seized and not already released under clause (c) of sub-section (4), on payment of the penalty imposed under sub-section (5) or on furnishing such security for the payment thereof, as such in-charge or officer may consider necessary. (8) Where the driver or the person in-charge of the vehicle or the carrier is found guilty for violation of the provisions of sub-section (2), subject to the provisions of sub-section (10), the in-charge of the check-post or the officer empowered under sub-section (3) may detain such vehicle or carrier and after affording an opportunity of being heard to such driver or person in-charge of the vehicle or the carrier, may impose a penalty on him as provided in sub-section (5). (9) The in-charge of the check-post or the officer empowered under sub-section (3) may re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in all respect in ink. The counterfoil of the declaration shall be retained by such dealer and its portions marked 'original' and '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) Any dealer or person other than a registered dealer:- (i) who imports any taxable goods as may be notified by the State Government; 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 Government, of the value of Rs. 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. (c) The driver or the other person in charge of a vehicle or carrier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule (1), shall obtain Form ST 18AA on payment of fee of Rs. 10 per form, from the assessing authority having jurisdiction over the area where his principal place of business is situated or in case there is no such place, where he ordinarily resides. (b) Form ST 18AA issued under clause (a) shall be valid for twenty-one days from the date of issue of the declaration form. If the form cannot be made use within the said period of twenty-one days, the form shall be returned to the issuing authority within thirty days, from the date of issue of declaration form. (c) Such dealer or person shall submit a statement of import of goods along with the duplicate portion of Form ST 18AA, and in case original portion of Form ST 18AA has not been retained by any officer mentioned in sub-rule (1), it shall be furnished with duplicate portion of Form ST 18AA, to the issuing authority abovementioned, within a period of thirty days, from the date of issue of declaration form to him. (4) Where a registered dealer or any other dealer or person other than registered dealer, fails to furnish statement as mentioned in sub-rule (2) or (3) above, as the case may be, the assessing authority or the aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18), (19) and (20) of rule 23 shall, in so far as may be mutatis mutandis apply to declaration Form ST 18C. (5) Where Form ST 18C is out of print or in short supply or otherwise not available in a zone, the Commissioner may issue such instructions as he deems proper in view of the circumstances of the case. (6) After the existing Form ST 5B and before Form ST 6, the following Form ST 5C shall be inserted." We also quote hereinbelow rule 55(3) of the R5T Rules, 1995, which reads as under: "55. Delivery of documents and seizure of goods.- (1) and (2)... (3) Where, a person-in-charge of the goods or the driver, as the case may be, does not possess any document and declaration form in respect of the goods in movement, or refuses to deliver the documents and the declaration form, or the documents and the declaration form produced appear to be false or forged, the in-charge of the check-post or the officer empowered under rule 52, may get such goods unloaded from the vehicle or the carrier and seize the same and shall issue a receipt of the goods so seized in Form ST 20." We also quote hereinbelow section 68 of the RST Act, 1994, which reads as under: "68. Penalty for other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion No. of the vehicle........... I........., Proprietor/Partner/Director/Karta/Manager/ Secretary of M/s..........hereby declare that the facts stated above in PART A are true to the best of my knowledge and belief and nothing has been concealed. I also undertake the responsibility to get filled up PART B from the consignor. Seal of the consignee or of Signature and status of the dealer with the person signing the RST/CST Nos. declaration." "COUNTERFOIL/ORIGINAL/DUPLICATE [FORM S.T. 18C] (See rule 54) Declaration for carrying goods outside the State by registered dealers Book No....... Serial No....... Seal of issuing authority Name of the office of issue ......................... Date of issue ......................... To, The check-post in charge, .............. Certified that the goods, particulars of which are given below are consigned by me to.....(place) outside the State of Rajasthan as a result of inter-State sale or for sale outside the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a single point in the series of sales by successive dealers. Under section 6, it is stated that in case of a dealer other than a manufacturer or processor whose total access able purchases in a year does not exceed Rs. 10 lakhs may be allowed by the Assessing Officer to pay tax on aggregate basis. Section 7 refers to payment of self-assessed tax. Section 12 refers to levy of tax on the turnover at each point of sale by the dealer. Section 13A deals with levy of turnover tax. Chapter VIII deals with inspection, search, seizure and anti-evasion provisions. Under section 78(1) the Commissioner has the power to set up check-posts at such place and for such period as may be specified. Section 78(2) requires the driver or person in charge of a vehicle or in charge of the goods to carry with him goods vehicle record (including challans and bills, despatch memos, bills of sale and prescribed declaration forms). Under Explanation (iii) it is stipulated that for the purposes of Chapter VIII the goods in movement shall mean the goods which are in possession of the transporter. Under section 78(5) the competent officer has to give hearing to the owner or his representative and after enquiry t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than or in the course of inter-State trade or commerce. The dealer is also required to submit his statement of exports to the Assessing Officer along with his returns which he files quarterly. Form 18A, 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 indicated by the consignee. Similarly, the consignee has to indicate the description of the goods. In the present case the consignee (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. He has also to give invoice number and the date. It is important to note that the declaration form is collected by the consignee from his Assessing Officer in the State of Rajasthan. The consignee gives an undertaking to get Part B filled by the consignor. Similarly, the consignee gives a declaration that facts stated in Part A are true to his knowledge. In the present case, the entire form was left blank though it had been signed by the consignee. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted an economic offence and to deter him from committing such offences. The penalty imposed under the said section 78(5) is a civil liability. Wilful consignment is not an essential ingredient for attracting the civil liability as in the case of prosecution. Section 78(2) is a mandatory provision. If the declaration Form No. 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 non-compliance. Default or failure to comply with section 78(2) is the failure/default of a statutory civil obligation and proceedings under section 78(5) are 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. 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 ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he description of the goods is not given then it is impossible for the Assessing Officer to assess the taxable goods. Moreover, in the absence of value/price it is not possible for the Assessing Officer to arrive at the taxable turnover as defined under section 2(42) of the said Act. Therefore, we have emphasised the words "material particulars" in the present case. It is not open to the assessees to contend that in certain cases of inter-State 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 No. 18A/18C even in respect of goods in movement under inter-State 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 the inter-State 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 the transaction it cannot be said that the transa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck-post. In the present case, we are not concerned with the transit pass. In the present case, there are no words in section 78(5) similar to section 28B of the Uttar Pradesh Sales Tax Act, 1948, which states that if the transit pass was not handed over to the officer at the check-post, the Department would be entitled to raise the presumption that the goods in transit were sold in the State. As stated hereinabove, we have to go by the words used in the section to ascertain whether the Legislature has excluded the element of mens rea. It is the statutory law enacted by the competent Legislature which can exclude the presumption under common law. We hold that section 78(5) excludes the presumption of mens rea which is normally prevailing in common law. Our reasoning is also based on one more factor, namely, that section 78(5) provides a remedy for recovery of the loss caused to the State by such contravention. In the present case, the assessees have relied upon the judgment of this court in the case of State of Rajasthan v. D.P. Metals [2002] 1 SCC 279. In that case the facts were as follows: The assessee-firm manufactured stainless steel sheets. The assessee was a registered deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blank declaration Form No. 18A/18C which has travelled with the goods in movement, though signed, was left deliberately blank. The declaration Form No. 18A/18C is like a return under the Income-tax Act, 1961. The Assessing Officer completes the assessment on the basis of Form No. 18A/18C. If that form is left blank in all material respects then it is impossible for the Assessing Officer to arrive at the taxable turnover of the assessee. Therefore, in our view, the judgment of this court in the State of Rajasthan v. D.P. Metals [2002] 1 SCC 279, has no application to the present case. Before concluding, we may mention that in this batch of civil appeals we have civil appeals filed by the Department. These civil appeals relate to cases where specified documents did not accompany the goods in movement. The lead case in that regard is Civil Appeal No. 5240 of 2005 Assistant Commercial Taxes Officer v. Guljag Industries Ltd., filed by the Department. We make it clear that our judgment is basically confined to cases where blank/incomplete Form No. 18A/18C had accompanied the goods in movement. Whatever we have stated above is in the context of the incomplete Form No. 18A/18C travelling ..... X X X X Extracts X X X X X X X X Extracts X X X X
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