ASSISTANT COMMERCIAL TAX OFFICER Vs M/S ROMESH POWER PRODUCTS P.LTD.
Bench: H.L. DATTU,CHANDRAMAULI KR. PRASAD
Case number: C.A. No.-000246-000246 / 2012
Diary number: 33800 / 2009
Advocates: IRSHAD AHMAD Vs
N. ANNAPOORANI
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