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TMI Blog2000 (11) TMI 1239X X X X Extracts X X X X X X X X Extracts X X X X ..... il vide bill No. 1043 dated 24.7.1997 in Truck No. KA-01/A-7898. The selling dealer M/s S. Thangavel of Tamil Nadu sent the said goods along with all the necessary documents, including the bill No. 3/46 dated 24.7.1997 bilty No. 1043 and a declaration as prescribed by the Tamil Nadu Sales Tax Act. A further declaration Form ST 18A as prescribed by the Rajasthan Sales Tax Act, 1994 and the Rules framed thereunder was also sent. The said goods were intercepted at Banar Road Octroi Naka and the driver of the truck one Ponnuswamy was asked to produce the documents. He produced all the documents including the bills, declaration forms etc. and the declaration Form ST 18A before the Assistant Commercial Taxes Officer, Flying Squad-II. On a perusal of the aforesaid documents, the Assistant Commercial Taxes Officer found that ST Form 18A is not fully filled up and details required to be given in Column No. 3 to 9 were not filled in by the selling dealer Thangavel of Tamil Nadu. 4. A show cause notice was issued to the Respondent Company to show cause why the penalty under Section 78(5) of the Rajasthan Sales Tax Act, 1994 may not be imposed upon the respondent. According to the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved by the order which may be passed by the authority, it can prefer an appeal under Section 84 of the Act of 1994 before the Dy. Commissioner (Appeals), Jodhpur. 7. On merits, it was submitted that the Form ST 18A which has been produced by the respondent at the time of checking was not filled in accordance with law and the mere mentioning of the RST and CST Numbers of the purchasing dealer and Registration Number of selling dealer is not sufficient. It was further contended that the goods should accompany with the duly filled in Form ST- 18A and since the goods were not accompanied with the documents it attracts the penalty under Section 78 of the Act. 8. The respondent herein filed a rejoinder stating that his case squarely fall in category (ii) (iii) of Section 8 as the case in hand involves substantial questions of law relating to the interpretation of Section 78, Rule 53, and Forms ST 18A, and his original Application before the Tribunal, without exhausting the alternative remedy, is maintainable and justifiable in law. 9. The Rajasthan Taxation Tribunal, by order dated 25.8.1998, after careful analysis of the facts and circumstances of the case and the documents f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 78, RST Act. Therefore, proceedings under Section 78, RST Act for the imposition of penalty were not warranted in the facts and circumstances of the case. 12. Being aggrieved the State of Rajasthan has preferred the above writ petition, to quash the order passed by the Rajasthan Taxation Tribunal. Along with the writ petition, Annexures 1 to 6 were filed. 13. We have heard Mr. Sangeet Lodha, learned Counsel for the petitioners and Mr. Dinesh Mehta learned Counsel for the respondent. 14. Mr. Sangeet Lodha submitted as follows: (1) That the form produced by the driver of the vehicle, before the authority, was blank and that the blank form is to be treated as if no declaration form has been produced. (2) That since goods were being carried without requisite form, in confirmity with the provisions of Section 78 of the Act and the Rules, the competent authority is well within his jurisdiction to proceed to issue notice to the respondent-dealer in exercise of the powers conferred under Section 78(5) of the Act. (3) The original application preferred by the dealer is premature, in view of the alternative remedy available under the Statute itself. The dealer cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the declaration Form ST 18A, as prescribed by the Rajasthan Sales Tax Act, 1994 were available with the transporter containing declaration by the importer, whether merely carrying of incomplete declaration Form ST 18A, along with the goods in transit, can be treated as such breach of the provisions of Section 78 of the Act, for which penalty was imposable? (c) Whether the provisions for carrying declaration of the importer in the Form No. ST 18A by the transporter or carrier is to be treated to be a mandatory requirement? 18. In the present case, the penalty has solely been imposed because Form ST 18A, which accompanied the goods in transit, was incomplete. However, no deficiency or inaccuracy of the informations furnished in other documents accompanying the goods, have been found. 19. As already noticed, a perusal of the document Form ST 18A would show that it was not fully filled up and the details required to be given in Column No. 3 to 9 were not filled in by the selling dealer at Tamil Nadu. It is not in dispute that the orders were placed by the respondent herein with M/s Kamani Oil Industry, Kochi, to supply the goods in question and a demand draft of ₹ 4,70,4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the declaration Form ST 8590 issued on 17.7.1997 cannot be reused by 29.7.1997 as contended by Mr. Sangeet Lodha. That contention, in our opinion;, has no merit. 21. In the present case, as already noticed, it is not in dispute that the goods have been transported from Tamil Nadu and the goods were accompanied with all the documents. Even declaration in Form No. ST 18A was also accompanied with the goods which is a declaration to be furnished by the purchaser or the consignee, at whose request the goods have been moved from outside the State to inside the State of Rajasthan. The consignee is required to fill the details of the imported goods in Form No. ST 18A which is being given by the consignee in advance to the consigner. The declaration sought to be provided in Form No. ST 18A reads as under: Declared and certified that the goods, particulars of which are given below, have been imported by me/us or have been consigned to me/us from outside the State for purposes mentioned in Rule 52, and hold myself/ourselves liable for payment of tax as per law to the Government on the sale thereof. 22. It is not at all in dispute that Form No. ST 18A containing this declaration ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents are received along with the goods. Prior to that, when the consignee is required to send Form S.T. 18A to the consigner for the purpose of delivering it to the transporter for carrying it along with the goods, the description of goods, price/estimated value of the goods in rupees, Invoice No. /Challan No. and date, name and address of the carrier and registration No. of the vehicle carrying goods are not known to him. Until the goods are put in transit by the consigner and the details thereof are sent to him by the consigner, the consignee is not expected to fill in all these information and in that event, in the very nature of things the blank Form S.T. 18A duly signed by the consignee is to be sent to the consigner for the purpose of delivering it to the transporter for carrying it along with the goods. After the receipt of the goods, the consignee will be in a position to fill in the requisite informations in Form S.T. 18A and then deposit the same with the department. If those particulars are to be filled by the consignor' though no such obligation is specifically prescribed, then not filling of such particulars becomes a default of the consigner. It is implicit that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essed by this Court in D.P. Metals case, referred to above, affirming the view expressed by this Court in S.B. Sales Tax Revision Pet. No. 1201/99 ACTO v. Voltas Ltd., decided on 21.1.2000 and Mahaveer Conductors v. ACTO 104 STC 65 that penalty for mere non- production of documents by the transporter at the time of inspection does not result in automatic levy of penalty without having an opportunity to show existence of circumstances in which penalty is not leviable and that no penalty is leviable unless nexus between the default committed and intention to evade or avoid any tax on the sale or purchase of goods within the State of Rajasthan is established. Agreeing with the view expressed in Voltas Ltd. and other cases referred to in the above judgment, the Division Bench has further held that provisions for carrying declaration of the importer or carrier is not treated to be mandatory requirement and that the production of such declaration Form later on during the course of enquiry even by the importer is substantial compliance of the provisions. In that view of the matter, we do not deem it necessary to examine the issue about vires of Rule 53 in this case. 26. Mr. Sangeet Lod ..... X X X X Extracts X X X X X X X X Extracts X X X X
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