TaxTMI 
TaxTMI 
TaxTMI 
2016 (9) TMI 1086
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....sessee herein). The total weight of the goods was 19,690 Kg. with value of Rs. 12,10,955/- and a GR No.26324 dt.01/08/2008 of M/s Ahmedgarh Tanker Transport, Ludhiyana was also produced. The driver Baljeet Singh also produced Form VAT-47 bearing No.2417595 in which in all there were three parts namely; A, B & C and almost in all the parts, some column were found blank and instantaneously it was also noticed that against the date, month and value, the form was not punched and the officer was of the view that neither the Form VAT-47 was filled in nor being punched and the form could be used again and accordingly issued a show cause notice u/Sec. 76(2)(b) of the Rajasthan VAT Act, 2003 read with Rule 53. 3. On behalf of the assessee, an explanation was filed alongwith affidavit and it was pleaded that the matter be concluded on the same date itself, interalia, contending that the invoice, builty and even the Form VAT-47 was found with the vehicle and only on account of some inadvertence, some of the columns remained to be filled in and merely because some of the columns were left unfilled, it does not make any difference. It was also contended that the bill contained name of the tran....
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....art A, which were to be filled in by the consignee, only relate to nature of transaction, place, date and name, remained unfilled. In Part B, some of the columns relating to the place, date and name of consignor remained unfilled and in Part C some of the columns, which were to be filled in by the transporter, relating to name, place, date, status and signature, remained unfilled and according to him, these are not material particulars and thus contended that the penalty could not have been imposed and the impugned order is perverse and relied upon the judgments of this Court rendered in the case of Assistant Commercial Taxes Officer Vs. M/s. Hindustan Lever Ltd., Ajmer & Anr. (2013) 37 Tax Update 283 and Assistant Commercial Taxes Officer Vs. M/s. REBI Casting (Pvt.) Ltd. & anr.: (2013) 37 Tax Update 74. 8. Per-contra, ld. Counsel for the Revenue contended that Rule 53 of the VAT Rules mandates that a person carrying on such goods was required to carry a declaration form (VAT-47) complete in all respects duly filled in and even if one of the columns remained unfilled, in the light of judgment rendered by the Apex Court in the case of Guljag Industries Vs. Commercial Taxes Officer....
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....river or the person Incharge of a vehicle or carrier or of goods in movement shall- (a) Stop the vehicle or carrier at every check-post or barrier, and while entering and leaving the limits of the State bring and stop the vehicle at the nearest check-post or barrier, set-up under sub- section (1); (b) carry with him a goods vehicle record including "challans" and "bilties", invoices, prescribed declaration forms and bills of sale or dispatch memos; (c) produce all the documents including prescribed declaration forms relating to the goods before the Incharge of the check-post or barrier; (d) furnish all the information in his possession relating to the goods; and (e) allow the inspection of the goods by the Incharge of the check-post or barrier or any other person authorised by such Incharge. Explanation: For the purpose of this Chapter 'goods in movement' shall mean- (i) the goods which are in the possession or control of a transporting agency or person or other such bailee; (ii) the goods which are being carried in a vehicle or carrier belonging to the owner of such goods; and (iii) the goods which are being carried by a person. (3) The State Government....
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....te, any taxable goods, as may be notified by the State Government, for sale; or (ii) who receives any taxable goods as may be notified by the State Government, consigned to him from outside the State or by way of branch transfer/depot transfer/stock transfer; or (iii) who intends to bring, import or otherwise receives any taxable goods as may be notified by the State Government, from outside the State for use, consumption, or disposal otherwise than by way of sale; shall furnish or cause to be furnished a declaration in Form VAT-47, completely filled in all respect in ink and ensure that the value, date and month or use of such Form shall be punched at the specified place provided for in the Form. The counterfoil of the declaration Form shall be retained by such dealer and its portions marked as 'Original' and 'Duplicate' shall be carried with the goods in movement. However, where goods covered under single invoice are being carried in more than one vehicle, separate Form VAT-47 shall be accompanied with each of such vehicles along with photo copy of the original invoice and challan of the goods carried in the vehicle. [Provided that subject to such conditio....
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....on Incharge of the vehicle or carrier or of the goods shall, on inspection by an officer authorized under sub-section (4) of section 76, at any subsequent place, produce the countersigned and sealed copy of the aforesaid declaration along with other documents specified in clause (b) of sub-section (2) of section 76. Explanation: For the purpose of this rule, 'taxable goods' means all goods except the goods which are exempted from tax in accordance with the provisions of the Act." 12. Section 76 of the VAT Act takes into consideration the movement of goods while in transit and it envisages that the owner, driver or incharge of the vehicle, which is carrying on certain goods, shall stop the vehicle or carrier at every check post or barrier while entering and leaving the limits of the State and such vehicle shall carry a goods vehicle record including challan, bilties, invoices, prescribed declaration form and bills of sale and dispatch memos and other documents as envisaged in Sec. 76. 13. Simultaneously, Rule 53 of the VAT Rules mandates that a declaration form is required to be carried with goods in movement for import within the State and the registered dealer shall fu....
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....e above, it is even admitted by the petitioner herein that even the signatures were not there. 17. The Apex Court in the case of Guljag Industries Vs. Commercial Taxes Officer (supra) had an occasion to consider scope of Sec. 78(5) of the RST Act, 1994 which was with reference to the declaration form ST-18-A/ST-18-C which is pari- materia to Sec. 76(6) of the VAT Act, 2003 and now Form VAT-47. The said judgment also quoted in extenso the declaration form ST-18-A and ST-18-C and analyzed the form. The Apex Court also took into consideration Rule 53 and observed in Para 25 to 29 of the said judgment which reads ad-infra:- "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 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....
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....at 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 18A/18C. 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. 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 c....
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....o the other judgments and held in Para 33, 34 & 35 ad-infra:- "33. Section 78(2) of the RST Act, 1994 read with Rule 55 of the RST Rules, 1995, after its amendment in consequence to the judgment in State of Rajasthan And Another Vs. M/s. D.P. Metals(supra), provides for an opportunity, to be given to produce the required document and/or declaration forms complete in all respects when the goods enters or leaves the nearest check-post of the State. Sub- rule(2) of Rule 55 requires that verification or enquiry shall be completed within seven days from the date of issue of the direction, and for action, if any, warranted in the circumstances of the case, in pursuance to the direction given under sub- clause(a) of clause(4) of Section 78 of the RST Act, 1994, which provides that where any goods in movement, other than exempted goods, are without documents, or are not supported by documents as referred to in sub-section(2), or documents produced appear false or forged, the 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 ....
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....ecision of the Hon'ble Supreme Court in State of Rajasthan And Another Vs. M/s. D.P. Metals(supra), authorises the authority empowered, to make an enquiry of violation of Section 78(2), and not to adjudicate as to whether the mens rea was present in violation of sub-section (2) of Section 78, for imposing penalty under sub- section (5) of Section 78 of the RST Act, 1994. (iv) The mens rea is not required to be proved as necessary ingredient for imposition of penalty under sub-section (5) of Section 78, on proving violation of sub-section(2) of Section 78 of the RST Act, 1994." (emphasis supplied) 20. This Court in the case of M/s Bishambhar Dayal Shankar Lal Vs. Assistant Commercial Taxes Officer, Alwar (SB Sales Tax Revision No.99/2006), decided on 27/09/2013 came to the same conclusion. 21. Counsel for the assessee had also contended that for punching of form, time can be granted or that it is mere technical and such technicality need not come in the way of imposition of penalty. The argument is bereft of any merit, the section and rule envisage an additional feature in Rule 53 of punching to be done in declaration form VAT-47 in addition to filling of all columns takin....