1 S.B. Sales Tax Revision Petition No. 409/2008 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER S. B. Sales Tax Revision Petition No. 409/2008 Assistant Commercial Tax Officer, Alwar Versus M/s. Electrolux Kelvinator Ltd. & Another. Date of Order: 26.11.2010 Hon'ble Mr. Narendra Kumar Jain,J. Mr. R.B. Mathur, for the petitioner. Mr. Vivek Singhal, for the respondent. BY THE COURT: Heard learned counsel for the petitioner. 2. Vehicle No. DL-1L/B-4881 was checked by assessing officer near Shahjahapur Check Post. On production of documents, it was found that declaration form ST 18-A was not accompanied with the vehicle/goods. Assessing officer issued show cause notice to assessee as to why penalty under Section 78(5) of the Rajasthan Sales Act, 1994(hereinafter referred to as 'the 2 S.B. Sales Tax Revision Petition No. 409/2008 Act of 1994') may not be levied. Assessee filed reply to show cause notice wherein it was contended that goods in question were not for the purpose of sale, therefore, declaration form was not required, however, assessee also submitted declaration form ST 18-A alongwith reply to show cause notice. Assessing officer was of the view that declaration form should have been accompanied with the vehicle/goods, therefore, there was a breach of Section 78(2) of the Act of 1994 and consequently, vide order dated 08.04.1999 levied penalty under Section 78 (5) of the Act of 1994. 3. Being aggrieved with the assessment order, assessee preferred an appeal, which was allowed by Deputy Commissioner (Appeals) vide order dated 24.11.2005, on the ground that since declaration form had been submitted by the assessee before assessing officer before passing of assessment order alongwith reply to show cause notice, therefore, matter is covered by judgment delivered by Hon'ble Apex Court in State of Rajasthan & Another Vs. D.P. Metals, reported in (2002) 1 SCC 279. 4. Being aggrieved with the same, assessing officer filed an appeal before Rajasthan Tax 3 S.B. Sales Tax Revision Petition No. 409/2008 Board, which was dismissed vide Judgment dated 02.08.2007, on the ground that order of assessment was passed against owner of the goods and not against in-charge of the goods and matter relates to the period prior to 22.03.2002 when Section 78(5) of the Act of 1994 was amended, therefore, no order could have been passed against the owner of the goods, which is under challenge in this revision petition preferred on behalf of the department. 5. Submission of learned counsel for the petitioner is that order passed by Rajasthan tax Board is contrary to the judgment delivered by Hon'ble Apex court in Assistant Commercial Taxes Officer Vs. Bajaj Electricals Limited, reported in (2009) 1 SCC 308, wherein Hon'ble Apex court held that the words “the person in-charge” will include the owner of the goods also, therefore, impugned judgment passed by Rajasthan Tax Board is liable to be set aside. 6. I have considered the submissions of learned counsel for the petitioner and find force in the same. It is correct that judgment passed by Rajasthan Tax Board is contrary to the judgment of Hon'ble Apex court in Assistant Commercial Taxes Officer Vs. Bajaj Electricals 4 S.B. Sales Tax Revision Petition No. 409/2008 Limited(supra), however, I find that declaration form ST 18-A, which was not accompanied with the documents at the time of checking of the vehicle/goods, was produced by the assessee before assessing officer with reply to show cause notice, therefore, order of penalty passed by assessing officer is contrary to the judgment passed by three Judges Bench of Hon'ble Apex Court in State of Rajasthan & Another Vs. D.P. Metals(supra). 7. Hon'ble Apex Court in Bajaj Electricals Limited(supra) considered the provisions of Section 78(5) of the Act of 1994 and in para 28 of the judgment held that the expression “person in-charge of the goods” under Section 78(5) of the Act of 1994 would include the owner of the goods, therefore, it is apparent that reasons assigned by Rajasthan Tax Board for setting aside penalty order is illegal and contrary to judgment passed by Hon'ble Apex court and the same is liable to be set aside. 8. Hon'ble Apex court in State of Rajasthan & Another Vs D.P. Metals(Supra) considered the provisions of Sections 78(2)(a) and 78(5) of the Act of 1994 and in para 32 held, “if by mistake some of the documents are not readily available 5 S.B. Sales Tax Revision Petition No. 409/2008 at the time of checking, principles of natural justice may require some opportunity being given to produce the same.” Learned counsel for the petitioner does not dispute that declaration form ST 18-A was produced by assessee alongwith reply to show cause notice before assessing officer. This fact finds place in assessment order as well as order passed by Deputy Commissioner(Appeals). It is relevant to mention that Deputy Commissioner(Appeals) allowed the appeal of the assessee and set aside penalty order on the basis of judgment of Hon'ble Apex Court in D.P. Metals case(supra), but the said point was not considered by Rajasthan Tax Board and the penalty order was set aside on other ground, as mentioned above, which was contrary to the judgment of Hon'ble Apex Court in Bajaj Electricals Limited(supra). In these circumstances, there is no doubt that the judgment passed by Rajasthan Tax Board is liable to be set aside, but at the same time penalty order is also liable to be set aside in view of judgment of Hon'ble Apex Court in D.P. Metals case(supra), which was rightly set aside by Deputy Commissioner(Appeals). 9. In view of above discussions, impugned judgment dated 02.08.2007 passed by Rajasthan 6 S.B. Sales Tax Revision Petition No. 409/2008 Tax Board in Appeal No. 1705/2006/Alwar is set aside but it is also held that order of penalty dated 08.04.1999 was rightly set aside by the Deputy Commissioner(Appeals) vide order dated 24.11.2005. In these circumstances, revision petition is dismissed in limine on the basis of principles laid down in the case of D.P. Metals case(supra). (Narendra Kumar Jain),J. Manoj, Item No.C1.