Late production of transit declaration cured the defect, and owner could be treated as person in charge for penalty purposes.

Penalty under section 78(5) of the Rajasthan Sales Tax Act was not sustainable where declaration form ST 18A was unavailable at the time of checking but was later produced before the assessing officer with the reply to the show-cause notice. The defect was treated as cured because a reasonable opportunity to furnish the document had been available, consistent with the rule applied in D.P. Metals. On the separate issue, the expression "person in charge of the goods" was held to include the owner of the goods, so the Tax Board's reasoning to invalidate the penalty on that ground was incorrect. The penalty was nevertheless set aside on the merits because the later production of the declaration form remained the substantive basis.

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Issues: Whether penalty under section 78(5) of the Rajasthan Sales Tax Act, 1994 was sustainable where the declaration form ST 18A was not available at the time of checking but was produced before the assessing officer with the reply to the show-cause notice, and whether the owner of the goods could be treated as the person in charge for the purpose of levy of penalty.

Analysis: The provision concerning penalty for breach of transit documents was read with the requirement that, where documents are not readily available at the time of checking, a reasonable opportunity may be afforded to produce them. Since the declaration form ST 18A was admittedly furnished before the assessing officer along with the reply to the show-cause notice, the defect stood cured in light of the rule stated in D.P. Metals. On the separate question, the expression person in charge of the goods was taken to include the owner of the goods, so the reason adopted by the Tax Board for invalidating the penalty order on that ground was not sustainable. Even so, the earlier appellate order setting aside the penalty was upheld because the substantive basis for deletion of penalty was the later production of the declaration form.

Conclusion: The penalty under section 78(5) was rightly set aside and the assessee succeeded on the merits, although the Tax Board's contrary reasoning was rejected.

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