1. Heard the learned counsel for petitioner.
2. This revision petition under Section 86 of the Rajasthan Sales Tax Act, 1994 (for short 'the Act of 1994') is directed against the impugned judgment dated 16.12.2005 passed by the Rajasthan Tax Board, Ajmer in Appeal No.173/2005/Baran, whereby the appeal of petitioner was dismissed.
3. Briefly stated the facts of the revision petition are that on 30.06.1999 vehicle No. HR-46/A-0179 was checked by the authorized officer. The vehicle driver and in charge of the goods produced the documents and it was found that Form 18(C) was necessary to be accompanied with the goods in question, but it was not accompanied therefore not produced. A notice to show cause was given to vehicle driver under Section 78(2) read with Rule 53. In response to the show cause notice, owner of the goods/respondent appeared and filed its reply, wherein it was stated that due to inadvertence the Declaration Form 18(C) could not be sent along with the goods.
4. The Assessing Officer was not satisfied with the explanation furnished by the assessee and consequently, levied penalty under Section 78(5) of the Act @ 30%, amounting to Rs.60,481/- vide order dated 30.06.1999. Being aggrieved with the same, an appeal was preferred by the assessee, which was allowed by the Deputy Commissioner (Appeals) vide order dated 09.08.2004 on the ground that the order could have been passed only against the person in charge of the goods and not against owner of the goods in view of judgment of Rajasthan Tax Board, Ajmer, reported in 17 S.T.T. Page 70. The Revenue preferred an appeal before the Tax Board but without success. Hence, this revision petition was preferred on behalf of the Revenue.
5. Learned counsel for petitioner contended that judgment of Tax Board as well as Deputy Commissioner(Appeals) both are contrary to the judgment of Hon'ble Apex Court in Assistant Commercial Taxes Officer v. Bajaj Electricals Limited, reported in 2009(1) SCC 308, wherein the Hon'ble Apex Court has held that words person in charge of the goods include owner of the goods, therefore, both the orders are liable to be quashed and set aside by this Court.
6. No one is present on behalf of the non-petitioner despite service of notice.
7. I have considered the submissions of learned counsel for petitioner in the light of reasons assigned by both the Appellate Authorities i.e. Deputy Commissioner (Appeals) as well as Rajasathan Tax Board for setting aside the penalty order.
8. There is no dispute between parties that vehicle in question was checked by the authorised officer on 30.06.1999 and the goods carrying in the vehicle were not accompanied with Declaration Form 18(C) and a notice to show cause was given to the vehicle driver/person in charge of the goods, but respondent-assessee, who was owner of the goods, appeared in response to the show cause notice given to vehicle driver and filed a written application, which was taken on record. It was explained by the assessee that due to inadvertence, the required Declaration Form 18(C) could not be sent. The explanation was not accepted by the Assessing Officer and penalty was levied.
9. The Deputy Commissioner(Appeals) in its order observed that Declaration Form 18(C) was necessary document to be accompanied with the goods, but the same was not available at the time of checking of the goods, nor it was produced before Assessing Officer during enquiry, however, the assessment order was set aside on the ground that before 22.03.2002, when amendment was made in Section 78(5) of the Act of 1994, penalty could not have been levied against owner of the goods and it could have been levied only against 'vehicle driver' or 'person in charge of the goods'. Same view was taken by the Rajasthan Tax Board while rejecting the appeal of the Department.
10. Hon'ble the Apex Court in Assistant Commercial Taxes Officer v. Bajaj Electricals Limited (supra), considered the provisions of Section 78(5) of the Rajasthan Sales Tax Act, 1994. The amendment made in Section 78(5) on 22.03.2002 was also considered and it was held that expression person in charge of the goods under Section 78(5) would include owner of the goods. Paras 27, 28 and 29 are reproduced as under:-
27. Let us examine the scheme of Section 78 of the said 1994 Act prior to 22-3-2002. Under Section 78(2) the driver or the person in charge of a vehicle or carrier of goods in movement had to carry with him goods vehicle record including challans, bilities, bills of sale dispatch memos and declaration in Form ST 18-A. Under Section 78(4) where any goods in movement travel without the above documents(including Form ST 18-A) or if the documents produced appeared to be false or forged then the in charge of the check-post may inter alia seize the goods for reasons to be recorded in writing or direct the person in charge of the vehicle not to part with the goods in any manner or to release the goods seized to the owner of the goods. Therefore, there was a dichotomy between the person in charge of the vehicle or carrier of goods in movement under Section 78(2) on the one hand and the owner of the goods under Section 78(4) on the other hand. However, under Section 78(5) the in charge of the check-post after having given the person in charge of goods a reasonable opportunity of being heard and after having held such enquiry as he may deem fit, shall impose on him for possession or movement of goods in violation of the provisions of Section 78(2)(a) a penalty equal to 30% of the value of such goods.
28. If one reads sub-section (5) of Section 78 in its entirety with Rule 53 of the 1995 Rules, it is clear that penalty was liable to be imposed for importation of any taxable goods for sale without furnishing a declaration in Form ST 18-A completely filled in all respects. The duty to fill and furnish the said form is imposed on the purchasing dealer. Therefore, Section 78(5) as it stood prior to 22-3-2002 imposed penalty if possession or movement of goods took place inter alia in breach of Section 78(2)(a) on the person in charge, which included the owner. In this connection it may be noted that sub-section (5) comes after sub-section (4)(c) which talks about release of the goods to the owner of the goods on his giving of adequate security. It is the owner(importer) who has to fill in Form ST 18-A. It is the owner who is entitled to seek release under Section 78(4) on giving security. It is the owner who is entitled to hearing under Section 78(5) and, therefore, the expression person in charge of the goods under Section 78(5) would include the owner. Moreover, under Section 78(2) the words used are person in charge of a vehicle or carrier of goods in movement whereas the words in Section 78(5) which comes after sub-section (4) refer to person in charge of the goods. The words in movement do not find place in Section 78(5) and therefore the expression person in charge of goods under Section 78(5) was wider than the expression person in charge of goods in movement under Section 78(2)(a). Consequently, the expression person in charge of the goods under Section 78(5) who is given an opportunity of being heard in the enquiry would include the owner of the goods.
29. Therefore, in our view, the judgment of this Court in Guljag Industries would squarely apply to the facts of the present case. In fact, our view in Guljag Industries finds support from the amendment made in Section 78(5) vide Act 7 of 2002 w.e.f. 22-3-2002 by which the expression person in charge of the goods under the old Section 78(5) is substituted by the words the owner of the goods or a person authorised in writing by such owner or person in charge of the goods. It is once again emphasised that Act 7 of 2002 is an exercise in substitution. Therefore, the legislature seeks to clarify the expression person in charge of the goods occurring in Section 78(5) as it stood earlier by Act 7 of 2002. In fact, it is interesting to note that even under Section 22-A(3) of the 1954 Act, penalty was leviable on the owner of the goods for possession of goods not covered by the goods vehicle record[including declaration under Section 22-A(3)].
11. The legal issue involved in the present case whether expression person in charge of the goods under Section 78(5) would include owner or not, has been decided by the Hon'ble Apex Court in the manner as indicated above. Therefore, the present case is fully covered by above decision of the Hon'ble Apex Court and the judgments passed by the Deputy Commissioner(Appeals) as well as Rajasthan Tax Board, both are contrary to the judgment passed by the Hon'ble Apex Court and, therefore, the same are liable to be set aside.
12. It is relevant to mention that provisions of Section 78(2) of the Rajasthan Sales Tax Act, 1994 have been held to be mandatory by the Hon'ble Apex Court in the case of Guljag Industries v. Commercial Taxes Officer, reported in (2007)7 SCC 269. Since Form 18(C) was not produced either at the time of checking of goods or during enquiry before Assessing Officer, therefore, penalty was rightly imposed.
13. Consequently, the revision petition is allowed. The judgment dated 09.08.2004 passed by the Deputy Commissioner(Appeals) and the order dated 16.12.2005 passed by the Rajasthan Tax Board, Ajmer, are set aside and the order of Assessing Officer dated 30.06.1999 is upheld. The parties are directed to bear their own costs.