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TMI Blog2016 (6) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... aration Form ST-18A was not found, therefore, there was violation of 78(2) read with Rule 53 of the Rajasthan Sales Tax Act, 1994. A show cause notice was issued and on show cause notice, the respondent accepted that there was mistake in not carrying of declaration Form ST-18A and he was ready and willing to pay penalty and to pass an order on the same day i.e. 10/01/2001 itself. Accordingly, the Assessing Officer imposed penalty u/S. 78(5). The same was assailed before the Dy. Commissioner (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 the bill, therefore declaration Form ST-18A was not required and even no penalty was leviable on the owner. Thus, deleted the penalty on an appeal filed by the revenue, the Tax Board also upheld the order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 negated in the sense that even before the Assessing Officer, the respondent-assessee admitted that there was a mistake in not carrying of declaration Form ST-18A despite specific notice which has been given to the respondent-assessee. It was contended by the assessee that necessary order may be passed at the time of inspection when notice was given of subsequent date accepting that the penalty may be imposed and levied. Be that as it may the finding of the Tax Board that no penalty could have been 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 importat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as leviable on the "owner of the goods" for possession of goods not covered by the Goods Vehicle Record [including Declaration under Section 22-A(3)]. 30. Before 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 respondent that a blank Form was sent to the consignor. In view of the above prevarication we hold that the Dy. Commissioner(A) was right in holding that all the above excuses are trotted out as an afterthought. Even the production of the Form before the Dy. Commissioner(A) was an afterthought. Under the 1995 Rules, the consignor is required to give the said Form duly filled in when the consignment is ordered. The consignee has to see that the Form is given to the transporter with the complete details duly filled in by the consig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of revenue in crores to the State. Without description of the goods imported, it is easy to manipulate the value. If material particulars are not submitted, one fails to understand how assessment could be finalized. Moreover, as submitted on behalf of the State it has become a common practice to circulate the same form again and again resulting in loss of revenue to the State. It is for this reason that Rule 53 of the RST Rules, 1995 contemplates the form to be submitted duly filled in and duly completed. In the present case, the goods in movement were not supported 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 Section 78(5) of the said Act. Breach of Section 78(2) imposes strict liability under Section 78(5) because as stated above goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ences. They are excuses. The declaration forms were unfilled so that they could be used again and again. The forms were collected by the consignee from the said Department. The consignee undertakes to see that the value of the goods is supplied by the consignor. It 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 18-A/18-C. 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." 9. It may also be observed that the judgment of the larger Bench of this Court in the case of M/s.Indian Oil Corporation Ltd (supra), has also taken note of this fact about non carrying of d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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