Assistant Commercial Tax Officer vs M/S Romesh Power Products P.Ltd

2. This appeal is directed against the judgment and order

dated 29.06.2009 passed by the High Court of Judicature for

Rajasthan at Jaipur Bench in S.B.Sales Tax Revision Petition Civil

No.139 of 2009.

3. The Revenue, being aggrieved by the orders passed by the

Revenue Appellate Tribunal, Jaipur, had approached the High Court in

S.B.Sales Tax Revision Petition Civil No.139 of 2009.

4. The High Court has disposed of the Revision Petition only

on the ground that the Check-Post Authority had levied penalty on

the owner of the goods at the time of checking of the vehicle.

5. Dr.Manish Singhvi, learned counsel for the appellant would

contend that the reasoning of the High Court is

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opposed to the observation made by this Court in the case of

Asst.Commercial Taxes Officer Vs. Bajaj Electricals Ltd. (2009)1 SCC

p.308.

6. In the aforesaid said decision, this Court has observed:

"28. If one reads sub-section (5) of Section 78 in its

entirely 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

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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".

7. We are in agreement with the decisions of this Court. In

view of the conclusions reached by this Court in the above case, the

High Court was not justified in observing that since the penalty has

been levied only against the owner of the vehicle and not against

the person in-charge of the vehicle and, therefore, the judgment of

the High Court cannot be sustained.

8. In the result, the appeal is allowed, the order passed by

the High Court is set aside and the order passed by the Check-Post

Authority is confirmed.

Ordered accordingly.

.......................J. (H.L. DATTU)

.......................J. (CHANDRAMAULI KR. PRASAD)

NEW DELHI;

JANUARY 09, 2012