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TMI Blog2016 (9) TMI 1085X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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, 'AO') passed an order finding that the goods were imported within the State without declaration form ST-18-A and in view of provisions of Sec. 22-A(7) of the RST Act, imposed penalty @ 30% equivalent to the value of the goods. 3. The matter was assailed before the Deputy Commissioner (Appeals) (for short, 'DC(A)') who accepted the contention of the assessee that provisions of Sec. 22-A(7) are inapplicable particularly in view of the fact that the supporting documents contained all necessary information and in addition, a plea was raised that no show cause notice was served or received by the assessee and the show cause notice, if an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 taken and was aware of the vehicle having been intercepted, vehicle being seized and once the vehicle was seized immediately appeared before the officers by not only filing security bond to get the goods released as prescribed under the Act. She contended that on the one hand the assessee took advantage of release of the goods and for no reason thereafter did not appear knowing fully well that the goods have been released and took this plea of non-service of notice which is contrary to the material on record. 8. Counsel further contended that the argument of the counsel for the assessee fall flat when security bond has been submitted and a reply has also been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 quote Sec. 22-A(7) of the RST Act, 1954 which read ad- infra:- "22-A Establishment of check-post or barrier and inspection of goods while in transit.- (1)... (2)... (3)... (4)... (5)... (6)... (7)(a) The officer-incharge 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 incharge 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 submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 Section 78(5) which gives no discretion to the competent authority in the matter of quantum of penalty fixed at 30 per cent of the estimated value is to provide to the State a remedy for the loss of revenue. The object behind enactment of Section 78(5) is to emphasise loss of revenue and to provide a remedy for such loss. It is not the object of the said Section to punish the offender for having committed an economic offence and to deter him from committing such offences. The penalty imposed under the said Section 78(5) is a civil liability. Willful 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 dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 movement to travel with the declaration in Form 18A/18C duly filled in. It is Section 78(2)(a) which has been contravened in the present case by the assessees by carrying the goods with blank forms though signed by the consignee. In fact, the assessees resorted to the above modus operandi to hoodwink the competent officer at the check-post. As stated above, if the form is left incomplete and if the 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 A.O. to arrive at the taxable turnover as defined under Section 2(42) of the said Act. therefore, we have emphasized the words "material partic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (5) of Section 78 of the RST Act, 1994. In such case, an opportunity is to be {33} DB SALES TAX REVISION- 92/1999 & OTHER CONNECTED MATTERS given under Rule 55(1) of the RST Rules, 1995, to a person, to produce the required documents and/or declaration forms completed in all respects, when the goods enters or leaves the nearest check-post of the State. It is only when a person despite giving such an opportunity, is not able to produce the document and/or declaration forms completed in all respects, when the goods enters or leaves the nearest check-post of the State, or the documents are found to be false or forged, after enquiry, that a penalty may be imposed, which is a civil liability for compliance of the provisions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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., Jaipur Vs. State of Rajasthan (supra), the same is distinguishable to the facts of the instant case in as much as in that case, a notice was served on the accountant of the assessee and on perusal of the facts, it appears that counsel for the assessee and the accountant appeared before the AO with reference to the assessment proceedings. The CTO, Special Circle, Jaipur, who was going ahead with the assessment proceedings, noticed that the Return was also filed late and asked the accountant as well as counsel for the assessee to adduce reasons for late submission of Return and they could not offer satisfactory explanation for the delay and therefore, a penalty of Rs. 1,000/- was imposed u/Sec. 16(1)(c) of the RST Act. It is in view of these facts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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