IMPORTANT POINTS
Mens rea is not necessary for liability of penalty under Section 78(5), Rajasthan Sales Tax Act, 1994.
‘Person in charge of goods’ includes the owner.

JUDGMENT

S.H. Kapadia, J. —

This civil appeal filed by the Department is directed against the judgment and order dated 1.8.07 passed by the Rajasthan High Court in S.B. Sales Tax Revision Petition No.114 of 2005 setting aside the penalty under Section 78(5) of the Rajasthan Sales Tax Act, 1994.

2. On March 30, 1999 a truck coming from Delhi was intercepted. The name of the consignor in was M/s. Navyug Appliances (India), Mayapuri, Delhi. When the vehicle was stopped for checking at the check-post the driver was directed to produce bills, bilties, Declaration Form ST 18A for goods loaded in the vehicle. The statement of the driver was recorded. Show cause notice was issued. In reply to the show cause notice the representative of the respondent (importer) submitted that the duty for filling in the Declaration Form ST 18A was the responsibility of the transporter and the consignor and on account of mistake on the part of the transporter the said Form was not duly filled in. The A.O. came to the conclusion that goods were imported without the Declaration Form ST 18A which amounted to violation of Section 78(2)(a) of the Rajasthan Sales Tax Act, 1994 (for short, “the 1994 Act”) read with Rule 53 of the Rajasthan Sales Tax Rules, 1995 (for short, “the 1995 Rules”). Hence, on the price of the goods of Rs.2,85,000/-, penalty at the rate of 30% to the tune of Rs.85,500/- came to be imposed.

3. Aggrieved by the decision of the A.O. imposing penalty, the respondent carried the matter in appeal to Dy. Commissioner (A). Before the Appellate Authority it was contended on behalf of the respondent that the Declaration Form relating to the goods was sent to the consignor but through oversight it was left behind and therefore there was no intention to evade the tax and that the decision of the A.O. to impose penalty for not carrying Declaration Form ST 18A with the goods was erroneous and unjustified, particularly, when bilty, invoice etc. were there when the vehicle was intercepted. Thus, blame was put on the consignor/transporter. Moreover, during the course of hearing the respondent had produced the Declaration Form ST 18A and it was contended that in view of Declaration Form since produced, the judgment of this Court in the case of State of Rajasthan and Another v. D.P. Metals,1 (2002) 1 SCC 279 stood complied with. The arguments of the respondent were rejected by the Commissioner (A) who came to the conclusion that the above contentions advanced by the respondent were merely excuses as neither in the reply to the show cause notice nor in the enquiry before the AO the respondent ever produce the said Form ST 18A and that the subsequent production of the form was an after-thought. The Appellate Authority further found that there was no affidavit from the transporter owning up the said mistake. For the above reasons, the Appellate Authority refused to interfere with the penalty order passed by the A.O.

4. Aggrieved by the said decision of the First Appellate Authority, respondent herein moved to Rajasthan Tax Board in Appeal No.326 of 2004. Before the Board, respondent contended that it had sent the Declaration Form ST 18A to the consignor but due to mistake of the transporter who failed to tag the said Declaration Form with the documents, a mistake had crept in. It was urged that there was no intention of evasion of tax. It was also argued that the cause of action in the present matter arose on 30.3.1999, i.e., prior to 22.3.2002 when Section 78(5) stood substituted, hence penalty under the amended Section 78(5) could not have been imposed against the owner of the goods. The Board came to the conclusion that the case arose prior to 22.3.2002 and consequently imposition of penalty against the owner was illegal. On that point alone the Board set aside the penalty and allowed the appeal filed by the assessee. The Board did not examine the merits of the case.

5. Aggrieved by the decision of the Board, the Department preferred S.B. Sales Tax Revi