1 S.B. Sales Tax Revision Petition No. 166/2008 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Sales Tax Revision Petition No. 166/2008 Assistant Commercial Tax Officer, Jaipur Versus M/s. P.L. Motors Limited, Jaipur. Date of Judgment: 21.10.2010 Hon'ble Mr. Narendra Kumar Jain,J. Mr. A. Kaushik on behalf of Mr. R.B. Mathur, for the petitioner. Mr. Alkesh Sharma, for the respondent. BY THE COURT: Heard learned counsel for the parties. 2. The facts of the case in nutshell are that a Truck/Vehicle No. GJ-9V-4877 was checked by the authorized officer on 12.08.1998 and it was found that goods were not accompanied with Declaration Form ST 18-A, as required under Section 78(2) and Section 81 of Rajasthan Sales Tax Act, 1994(hereinafter referred as 'the Act of 1994') read with Rule 53 of the Rajasthan Sales Tax Rules, 1995. The goods were detained at transport company and a notice was issued to dealer-respondent as to why penalty may not be levied under Section 78(5) of the Act of 1994. 2 S.B. Sales Tax Revision Petition No. 166/2008 3. A reply to show cause notice was filed by assessee wherein it was contended that disputed goods are scooter parts, which are not notified goods under Section 81 of the Act of 1994, therefore, penalty is not attracted. 4. Assessing officer vide its order dated 24.08.1998 recorded a finding that as per Notification dated 09.07.1998 issued by the State Government, parts of automobile and tractor are notified goods, therefore, disputed goods are also notified goods and goods should have been accompanied with Declaration Form ST 18-A, but the same was not accompanied with the goods at the time of checking, therefore, there is a violation of provisions of Section 78(2) of the Act of 1994. Consequently, assessing officer imposed a penalty of Rs. 15,392/- under Section 78(5) of the Act of 1994. 5. Being aggrieved with the assessment order, assessee preferred an appeal, which was allowed by Deputy Commissioner(Appeals) vide order dated 08.10.2004 on the ground that before amendment made in Section 78(5) of the Act of 1994 on 22.03.2002, the penalty was not leviable against owner of the goods. 6. Revenue preferred appeal before Rajasthan Tax Board, Ajmer and vide judgment dated 06.01.2006, Tax Board dismissed the appeal 3 S.B. Sales Tax Revision Petition No. 166/2008 of the Revenue observing that before 22.03.2002, a penalty could have been imposed only against the in-charge of the goods and not against owner of the goods. 7. The vehicle in dispute was checked on 12.08.1998 i.e. before amendment made in Section 78(5) of the Act of 1994 on 22.03.2002. Being aggrieved with the judgment of Tax Board, Revenue has preferred the present revision petition before this Court. 8. I have considered the submissions of learned counsel for the parties advanced before me. 9. The legal question involved in the present revision petition is, “Whether the words “the person in-charge of the goods” used in sub- Section 5 of Section 78 of the Act of 1994 include the owner of the goods or not?” 10. So far as the facts of the case are concerned there is no dispute that vehicle/truck was checked on 12.08.1998 and required Declaration Form ST 18-A was not accompanied with the goods carrying in the truck in dispute. Penalty was imposed against owner of the goods and not against truck driver or person in-charge of the goods. 11. It is relevant to mention that the words “The person in charge of the goods” were 4 S.B. Sales Tax Revision Petition No. 166/2008 substituted by the words “The owner of the goods” by way of an amendment by the Act No. 7 of 2002 with effect from 08.05.2002. 12. The provisions of Section 78(5) of the Act of 1994, before amendment and after amendment in 2002 by Act No. 7 of 2002 were considered by the Hon'ble Apex court in Assistant Commercial Tax Officer Vs Bajaj Electricals Limited reported in (2009) 1 SCC 308. The Hon'ble Apex court held that the expression “person in charge of the goods” under Section 78(5) would include the owner of the goods. Para 27, 28 and 29 of the judgment (supra) 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 5 S.B. Sales Tax Revision Petition No. 166/2008 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 6 S.B. Sales Tax Revision Petition No. 166/2008 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)].” 13. In view of the above discussions, it is clear that legal question involved in the present revision petition has already been settled by the Hon'ble Apex Court in Bajaj Electricals Limited case(supra) and in my view 7 S.B. Sales Tax Revision Petition No. 166/2008 present case is fully covered by the aforesaid judgment, therefore, it is held that the words “the person in-charge of the goods” under Section 78(5) of the Act of 1994 would include the owner of the goods. Since Deputy Commissioner(Appeals) as well as Tax Board both quashed the order of penalty on the ground that penalty could not have been imposed against the owner of the goods before amendment made in Section 78(5) in 2002, therefore, both the orders being contrary to the judgment delivered by Hon'ble Apex court in Bajaj Electricals Limited case(supra) are liable to be set aside. 14. Apart from above, it is also relevant to mention that admittedly Declaration Form ST 18-A was not accompanied with the goods when the truck in dispute was checked. Hon'ble Apex court in Guljag Industries Vs Commercial Taxes Officer, reported in (2007) 7 SCC 269 has already held that provisions of Section 78(2) of the Act of 1994 are mandatory in nature. Since Declaration Form ST 18-A was required to be accompanied with the goods at the time of checking and it was not there in the present case, therefore, provisions of Section 78(2) were violated and penalty was liable to be imposed under Section 78(5) of the Act of 1994. 8 S.B. Sales Tax Revision Petition No. 166/2008 15. In view of above discussions, revision petition filed by Revenue is allowed. Impugned orders dated 08.10.2004 passed by Deputy Commissioner(Appeals) and order dated 06.01.2006 passed by Rajasthan Tax Board, Ajmer in Appeal No. 967/2005/Jaipur are set aside. Order dated 24.08.1998 passed by assessing officer is upheld. 16. Parties are directed to bear their own costs. (Narendra Kumar Jain),J. Manoj, Item No.11.