IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  246 OF 2012 (@ SPECIAL LEAVE PETITION(C)NO.7101 OF 2010)

ASSISTANT COMMERCIAL TAX OFFICER                  APPELLANT

                VERSUS

M/S ROMESH POWER PRODUCTS P.LTD.                  RESPONDENT

O R D E R

1. Leave granted. 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