TaxTMI 
TaxTMI 
2007 (8) TMI 344
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....ppeals Nos. 4426, Civil Appeals Nos. 4429, Civil Appeals Nos. 4430, Civil Appeals Nos. 4431, Civil Appeals Nos. 4432, Civil Appeals Nos. 4433, Civil Appeals Nos. 4434, Civil Appeals Nos. 4435, Civil Appeals Nos. 4436, Civil Appeals Nos. 4437, Civil Appeals Nos. 4439, Civil Appeals Nos. 4440, Civil Appeals Nos. 4441, Civil Appeals Nos. 4442, Civil Appeals Nos. 5210, Civil Appeals Nos. 5211, Civil Appeals Nos. 5212, Civil Appeals Nos. 5213, Civil Appeals Nos. 5214, Civil Appeals Nos. 5215, Civil Appeals Nos. 5216, Civil Appeals Nos. 5217, Civil Appeals Nos. 5218, Civil Appeals Nos. 5219, Civil Appeals Nos. 5220, Civil Appeals Nos. 5221, Civil Appeals Nos. 5222, Civil Appeals Nos. 5223, Civil Appeals Nos. 5224, Civil Appeals Nos. 5226, Civil Appeals Nos. 5227, Civil Appeals Nos. 5228, Civil Appeals Nos. 5229, Civil Appeals Nos. 5230, Civil Appeals Nos. 5232, Civil Appeals Nos. 5233, Civil Appeals Nos. 5234, Civil Appeals Nos. 5235, Civil Appeals Nos. 5236, Civil Appeals Nos. 5237, Civil Appeals Nos. 5238, Civil Appeals Nos. 5239, Civil Appeals Nos. 5240, Civil Appeals Nos. 5243, Civil Appeals Nos. 5244, Civil Appeals Nos. 5245, Civil Appeals Nos. 5246, Civil Appeals Nos. 5247, Civil A....
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....g upon M/s. Guljag Industries to show cause why penalty was not leviable for violation of section 22A(3) of the Rajasthan Sales Tax Act, 1954. In response to the said notice M/s. Guljag Industries submitted that there was mistake in filling the declaration form and, therefore, there was no intention of tax evasion. It was further submitted that the said declaration Form ST 18A (Form No. 18A) was supposed to be filled in by the consignor but due to lack of knowledge of Hindi language the same could not be filled in by the consignor. The Assessing Officer did not accept the explanation given by M/s. Guljag Industries. The Assessing Officer refused to accept the unfilled form as a declaration. Accordingly, he imposed the penalty under section 22A(7) of the Rajasthan Sales Tax Act, 1954. Aggrieved by the decision of the Assessing Officer, M/s. Guljag Industries preferred Appeal No. 77/RST/JUC/95-96. By order dated August 10, 1999, Dy. Commissioner (Appeals) came to the conclusion that under rule 25(3) of the Rajasthan Sales Tax Rules, 1955, the purchasing dealer was required to give the requisite declaration in Form ST 18A to the selling dealer. According to the appellate authority, th....
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....ries Ltd., preferred by the Department the facts are as follows. On November 1, 1990, at Abu Road check-post, a vehicle was checked which was carrying goods. On search the driver furnished GR No. 1 dated October 31, 1990, issued by M/s. Delhi-Bombay Road Lines. The consignment was shown to be M/s. Sumit Marbles, Abu Road. There was Bill No. 122 dated October 31, 1990. That bill referred to 50.31 sq. meters of granite priced at Rs. 34,494 and the name of the recipient was shown M/s. Sri Parashwanath Granites. On verification of the vehicle, the goods were found to be more than the quantity shown in the bill. On searching the vehicle two envelopes were found one of which was of M/s. Sri Parashwanath Granites and other was of M/s. Hindustan Granites. Being suspicious of the evasion of tax, notice under rule 54 of the Rajasthan Sales Tax Rules, 1955 was issued on November 16, 1990. The representative of the assessee appeared. He deposited the disputed penalty amount and goods were released. In reply to the show-cause notice given to the assessee proposing levy of penalty under section 22A(7) of the Rajasthan Sales Tax Act, 1954, it was submitted by the assessee that he had delivered....
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....igh Court, the question of levy of penalty would arise only before the goods are delivered to the consignee and if it is found that the goods are in movement unaccompanied with documents. On facts the High Court found that if for some reason the driver failed to produce these documents at the checkpost which were subsequently produced and which were not false or forged, it could not be said that there was intention to evade the tax. The High Court held that merely because the driver had not shown the documents given to him by the assessee, could not make the assessee guilty of contravention. Consequently, the High Court held that notwithstanding the failure on the. part of the driver to show the bill accompanying the goods at the time of checking but in fact recovered from its possession later on ruled out the possibility of the document being subsequently prepared, accordingly, the order imposing penalty was set aside. At this stage, we may state that even in this ruling of the High Court in the case of Sri Parashwanath Granites, the High Court has clarified that the case of Sri Parashwanath Granites, was not the case of the documents being incorrect. On the contrary, the High Cou....
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....charge of a vehicle, boat or animal shall stop the same and keep it stationary so long as may reasonably be necessary and allow the officer-in-charge of the check-post or barrier or the officer empowered as aforesaid to examine the goods carried in or on such vehicle, boat or animal and inspect all records relating to the goods carried which are in the possession of such driver or other person in charge, who shall, if so required, give his name and address and the name and address of the owner of the vehicle, boat or animal and also the names and addresses of the consignors and the consignees, if any, and in case the consignor or the consignee is a registered dealer, whether in this State or in any other State, the number with the name of the district of issue of the registration certificate, if any, of such consignor or the consignee, as the case may be. (3) The owner or person-in-charge of a vehicle, boat or animal shall carry with him a goods vehicle record, a trip sheet or a log book, as the case may be, and such other document, as may be prescribed in respect of the goods carried in or on the vehicle, boat or animal, as the case may be, and produce the same before any offic....
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....transport goods from one destination to another. (7)(a) The officer-in-charge 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 in charge 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 submission of false declaration or documents, a penalty equal to five times of the rate of tax notified under section 5 of the Act, for such goods or 30 per cent. of the value of such goods, as may be determined by such officer whichever is less: Provided that where the goods are being carried without proper documents as required by sub-section (3) or with any false declaration or statements and the owner or the in charge or the driver of the vehicle, boat, or animal carrying such goods is found in collusion for such carrying of goods, the vehicle, boat or animal shall also be seized by the officer empowered under sub-section (7), and such officer, after affording an opportuni....
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....oods including retransporting or rebooking till such verification is done or such enquiry is made as is deemed necessary by such authority. (10) No order of penalty under this section shall be quashed or deemed to be void or voidable for want of seizure or mistake, defect or omission in seizure." We also quote hereinbelow rule 62A of the RST Rules, 1955, which reads as under: "62A. Documents prescribed under section 22A(3).- (1) The owner or person in charge of a vehicle, boat or animal shall carry with him a bill of sale or dispatch memo, and declarations as provided under the Act and Rules: Provided that no such bill of sale, despatch memo or declarations shall be necessary to be carried or furnished at check-post, in respect of personal effects otherwise than the goods referred to in sub-rule (2) of any person or exempted goods as defined in the Explanation to sub-section (6) of section 22A. (2)(a) If any person other than a registered dealer within the State wants to purchase from outside the State any goods, as notified by the State Government, of the value of rupees one thousand or more for use, consumption or disposal within the State, he shall make and furnis....
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....e or processing of goods for sale or in mining or generation or distribution of electricity of any other form of power or packing of goods for sale; or (b) who receives any goods consigned to him from outside the State for sale, shall make and furnish or cause to be furnished declaration in Form ST 18A. The counterfoil of the declaration shall be retained by such dealer and its portion marked original and duplicate shall be produced before the officer-in-charge of the check-post who shall retain such original portion and return such duplicate portion duly sealed in token of having verified it to the person producing it. Such duplicate portion of the declaration shall be furnished by the dealer along with his quarterly statement in Form ST 6 to the assessing authority: Provided that Form ST 18A need not be furnished if the goods are goods of the class or classes specified in the certificate of registration under the CST Act, 1956 of the registered dealer purchasing the goods as being intended for use by him in the manufacture or processing of goods for sale or mining or in the generation or distribution of electricity or any other form of power: Provided further that For....
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....n March, 1989. (1a) A dealer who claims concession from payment of tax on the sale of raw material to any notified industry under section 5CC or to any manufacturer under any notification issued under section 4(2) shall in respect of such sale obtain a declaration from the purchasing manufacturer in Form 17A and shall, file such declaration before or at the time of assessment unless earlier required by the assessing authority and also submit a separate list of such sales in Form ST 16: Provided that no declaration shall cover more than one transaction except where the total amount covered by one declaration does not exceed Rs. 2 lakhs for all the transactions in 6 months. (1b)(i) The goods referred to in sub-section (1) of section 5CCCC which a registered dealer may purchase, shall be the goods intended for use by him as processing material (other than raw materials) such as machinery, plant, equipment, tools, stores, spare parts and accessories in the manufacture or processing of goods for sale, or in mining or in the generation or distribution of electricity; (ii) A dealer, who claims special rate of tax on the sales of goods referred to in sub-section (1) of section ....
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....before the assessing authority the portion marked 'original' of the declaration received by him from the purchasing dealer. The assessing authority may in his discretion, or in case of loss of the original foil of the declaration may direct the selling dealer to produce for inspection or record the portion of the declaration marked 'duplicate'. (8) No purchasing dealer shall give, nor shall a selling dealer accept any declaration except in a form obtained by the purchasing dealer, on application from the assessing authority and not declared obsolete and invalid by the State Government under the proviso to sub-rule (6). Every declaration form obtained from the assessing authority by a dealer shall be kept by him in safe custody and he shall be personally responsible for the loss of Government revenue, if any, directly or indirectly from any theft or loss thereof. Every registered dealer to whom any declaration form is issued by an assessing authority, shall maintain in a register in Form ST 16A a true and complete account or every such form received from the assessing authority. If any such form is lost, destroyed or stolen the dealer shall report the fact to the assessing author....
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....ssue of declaration form to him until such time as he: (i) deposits the outstanding demand; (ia) pays tax according to sub-section (2A) of section 7 of the Act; (ii) furnishes such return or returns, together with such receipted challan or challans; and (iii) furnishes any other return or returns together with the receipted challan or challans showing payment of the tax due according to such return or returns for the furnishing of which the prescribed date or dates or the extended date or dates, if any, may have expired after the date of the application: Provided that in a case coming under this clause, the assessing authority may, instead of withholding the declaration forms, issue such forms in such number and subject to such conditions and restrictions as may be considered reasonable, to an applicant, if in the opinion of the assessing authority it is desirable in the interest of speedy collection of sales tax revenue to grant time to the applicant to pay up the arrears of tax in on lump sum or in instalments. (d) Where the assessing authority does not proceed under clause (a), (b) or (c), he shall issue the requisite number of declaration forms to the applican....
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....before the in charge of the check-post; (d) give all the information in his possession relating to the goods; and (e) allow the inspection of the goods by the in-charge of the check-post or any other person authorised by such in-charge. Explanation.- For the purposes of this Chapter,- (i) 'vehicle or carrier' shall include any means of transportation including an animal to carry goods from one point to another point; (ii) 'goods' shall include animals also; and (iii) 'goods in movement' shall means- (a) the goods which are in the possession or control of a transporting agency or person or other such bailee; (b) the goods which are being carried in a vehicle or carrier belonging to the owner of such goods; and (c) the goods which are being carried by a person. (2A) The State Government may require by notification that the documents required to be furnished under sub-section (2) shall be furnished by means of such electronic devices, and be accompanied by such processing fee as may be prescribed. (3) Where any goods are in movement within the territory of the State of Rajasthan, an officer empowered by the State Government in this behalf may stop the ....
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.... penalty imposed under sub-section (5) or on furnishing such security for the payment thereof, as such in-charge or officer may consider necessary. (8) Where the driver or the person in-charge of the vehicle or the carrier is found guilty for violation of the provisions of sub-section (2), subject to the provisions of sub-section (10), the in-charge of the check-post or the officer empowered under sub-section (3) may detain such vehicle or carrier and after affording an opportunity of being heard to such driver or person in-charge of the vehicle or the carrier, may impose a penalty on him as provided in sub-section (5). (9) The in-charge of the check-post or the officer empowered under sub-section (3) may release the vehicle or the carrier on the payment of the amount of penalty imposed under sub-section (8) or on furnishing such security as may be directed by such in-charge or officer. (10) Where a transporter, while transporting goods, is found to be in collusion with a trader to avoid or evade tax, the in-charge of the check-post or the officer empowered under sub-section (3) shall detain the vehicle or carrier of such transporter and after affording him an opportunity ....
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.... notified by the State Government; or (ii) who receives any goods as may be notified by the State Government, consigned to him from outside the State; or (iii) who intends to bring, import or otherwise receives any goods from outside the State, as may be notified by the State Government, of the value of Rs. 10,000 or more for use, consumption or disposal within the State shall furnish or cause to be furnished a declaration in Form ST 18AA, completely filled in all respect in ink. The counterfoil of the declaration shall be retained by such dealer or person and its portions marked 'original' or 'duplicate' shall be carried with the goods in movement. (c) The driver or the other person in charge of a vehicle or carrier of goods in movement shall carry with him the documents specified in clause (a) of sub-section (2) of section 78 and declaration prescribed in clause (a) or (b) of this sub-rule, in respect of the goods in movement and shall produce the same, suo motu before the in charge of the entry check-post at the time of entry within the State or before the officer empowered under section 78, at the time of inspection under sub-section (3) of section 78, who shall retain....
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....m shall be returned to the issuing authority within thirty days, from the date of issue of declaration form. (c) Such dealer or person shall submit a statement of import of goods along with the duplicate portion of Form ST 18AA, and in case original portion of Form ST 18AA has not been retained by any officer mentioned in sub-rule (1), it shall be furnished with duplicate portion of Form ST 18AA, to the issuing authority abovementioned, within a period of thirty days, from the date of issue of declaration form to him. (4) Where a registered dealer or any other dealer or person other than registered dealer, fails to furnish statement as mentioned in sub-rule (2) or (3) above, as the case may be, the assessing authority or the authority who issued the declaration form, after affording a reasonable opportunity of being heard, may impose penalty under section 68 of the Act. (5) The provisions of sub-rules (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), (15), (16), (17), (18), (19) and (20) of rule 23 shall in so far as may be mutatis mutandis apply to the declaration Form ST 18A. (6) Where Forms ST 18A and ST 18AA is out of print or in short supply or otherwise not a....
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....le 55(3) of the R5T Rules, 1995, which reads as under: "55. Delivery of documents and seizure of goods.- (1) and (2)... (3) Where, a person-in-charge of the goods or the driver, as the case may be, does not possess any document and declaration form in respect of the goods in movement, or refuses to deliver the documents and the declaration form, or the documents and the declaration form produced appear to be false or forged, the in-charge of the check-post or the officer empowered under rule 52, may get such goods unloaded from the vehicle or the carrier and seize the same and shall issue a receipt of the goods so seized in Form ST 20." We also quote hereinbelow section 68 of the RST Act, 1994, which reads as under: "68. Penalty for other violations.- Where any dealer or a person fails to comply with a direction given by any officer or authority appointed or constituted under this Act or violates any of the provisions of this Act or the rules, for which no specific penalty has been provided elsewhere under the Act or the rules, the assessing authority or any other officer not below the rank of the Assistant Commercial Taxes Officer as authorized by the Commissioner, may....
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....sp; CST Act (3) Nature of the transaction:- ............. (a) Consignment; or ............. (b) Depot transfer; or ............. (c) Inter-State sale; or (d) Any other nature 1. Description of the goods ............. PART B (To be filled in by the consignor or person authorized) 1. Price/estimated value of goods in Rs....... 2. Invoice No./Challan No. and date. 3. (a) Name and full address of the carrier (Transport Company or owner of the vehicle) (b) Regis....
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.... .................... under RST Act and CST Act .................... 3. Name and address of the consignee .................... with R.C. No. under .................... RST Act .................... CST Act .................... 4. Nature of the transaction:- (a) Inter-State sale .................... (b) Despatch for sale outside .................... the State (c) Any other nature &....
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....0 in other case, he shall be liable to get registration under the Act. Under section 4, the tax payable by a dealer shall be at a single point in the series of sales by successive dealers. Under section 6, it is stated that in case of a dealer other than a manufacturer or processor whose total access able purchases in a year does not exceed Rs. 10 lakhs may be allowed by the Assessing Officer to pay tax on aggregate basis. Section 7 refers to payment of self-assessed tax. Section 12 refers to levy of tax on the turnover at each point of sale by the dealer. Section 13A deals with levy of turnover tax. Chapter VIII deals with inspection, search, seizure and anti-evasion provisions. Under section 78(1) the Commissioner has the power to set up check-posts at such place and for such period as may be specified. Section 78(2) requires the driver or person in charge of a vehicle or in charge of the goods to carry with him goods vehicle record (including challans and bills, despatch memos, bills of sale and prescribed declaration forms). Under Explanation (iii) it is stipulated that for the purposes of Chapter VIII the goods in movement shall mean the goods which are in possession of the tr....
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....o a place outside the State is also required to carry declaration in Form 18C with the goods in movement for export out of Rajasthan or in the course of inter-State trade or commerce. The dealer is also required to submit his statement of exports to the Assessing Officer along with his returns which he files quarterly. Form 18A, as quoted above, is in two parts. Part A has to be filled in by the consignee. Part B has to be filled in by the consignor. The nature of the transaction as to whether it is by consignment or by depot transfer or by inter-State sale has to be indicated by the consignee. Similarly, the consignee has to indicate the description of the goods. In the present case the consignee (assessee) has left the requisite columns blank. Part B has to be filled in by the consignor. Part B requires the consignor to give the estimated value of goods. He has also to give invoice number and the date. It is important to note that the declaration form is collected by the consignee from his Assessing Officer in the State of Rajasthan. The consignee gives an undertaking to get Part B filled by the consignor. Similarly, the consignee gives a declaration that facts stated in Part A a....
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.... 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. Wilful 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 declaration Form No. 18A/18C does not support the goods in movement because it is left blank then in that event section 78(5) provides for imposition of monetary penalty for non-compliance. Default or failure to comply with section 78(2) is the failure/default of a statutory civil obligation and proceedings under section 78(5) are neither criminal nor quasi-criminal in nature. The penalty is for statutory offence. Therefore, there is no question of proving of intention or of mens rea as the same is excluded from the category of essential element for imposing penalty. Penalty under section 78(5) is attracted as soon as there is contravention of statutory obligations. Intention of parties committing such violation is wholly irrelevant. Moreover, in the p....
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....bove 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 Assessing Officer to arrive at the taxable turnover as defined under section 2(42) of the said Act. Therefore, we have emphasised the words "material particulars" in the present case. It is not open to the assessees to contend that in certain cases of inter-State transactions they were not liable in any event for being taxed under the RST Act 1994, and, therefore, penalty for contravention of section 78(2) cannot be imposed. As stated hereinabove, declaration has to be given in Form No. 18A/18C even in respect of goods in movement under inter-State sales. It is for contravention of section 78(2) that penalty is attracted under section 78(5). Whether the goods are put in movement under local sales, imports, exports or the inter-State transactions, they are goods in movement, therefore, they have to be supported by the requisite declaration. It is not open to the assessee to ....
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....o raise a rebuttable presumption that the goods must have been sold in the State if the transit pass was not handed over at the check-post. In the present case, we are not concerned with the transit pass. In the present case, there are no words in section 78(5) similar to section 28B of the Uttar Pradesh Sales Tax Act, 1948, which states that if the transit pass was not handed over to the officer at the check-post, the Department would be entitled to raise the presumption that the goods in transit were sold in the State. As stated hereinabove, we have to go by the words used in the section to ascertain whether the Legislature has excluded the element of mens rea. It is the statutory law enacted by the competent Legislature which can exclude the presumption under common law. We hold that section 78(5) excludes the presumption of mens rea which is normally prevailing in common law. Our reasoning is also based on one more factor, namely, that section 78(5) provides a remedy for recovery of the loss caused to the State by such contravention. In the present case, the assessees have relied upon the judgment of this court in the case of State of Rajasthan v. D.P. Metals [2002] 1 SCC 27....
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....Rajasthan v. D.P. Metals [2002] 1 SCC 279, has no application to the facts of the present case. As stated, we are concerned with the blank declaration Form No. 18A/18C which has travelled with the goods in movement, though signed, was left deliberately blank. The declaration Form No. 18A/18C is like a return under the Income-tax Act, 1961. The Assessing Officer completes the assessment on the basis of Form No. 18A/18C. If that form is left blank in all material respects then it is impossible for the Assessing Officer to arrive at the taxable turnover of the assessee. Therefore, in our view, the judgment of this court in the State of Rajasthan v. D.P. Metals [2002] 1 SCC 279, has no application to the present case. Before concluding, we may mention that in this batch of civil appeals we have civil appeals filed by the Department. These civil appeals relate to cases where specified documents did not accompany the goods in movement. The lead case in that regard is Civil Appeal No. 5240 of 2005 Assistant Commercial Taxes Officer v. Guljag Industries Ltd., filed by the Department. We make it clear that our judgment is basically confined to cases where blank/incomplete Form No. 18A/18....