S.H.KAPADIA, J. - (1.) LEAVE granted in special leave petitions.
(2.) IN this batch of civil appeals we are required to consider the scope of Section 78(5) of the Rajasthan Sales Tax Act, 1994 which is in pari materia to Section 22A (7) of the Rajasthan Sales Tax Act, 1954. For the sake of convenience we may mention the facts in Civil Appeal No.5197 of 2005 - M/s. Guljag Industries v. Commercial Taxes Officer. On 21.1.95 near the Banar Road Check Post a vehicle was checked in which 47 barrel of chemicals were transported from Vishakapattanam. Along with the goods, outward gate pass No.4331 dated 16.9.95 of Andhra Petro-Chemicals Ltd. and consignment No.920 dated 16.9.95 of M/s. AVR and Co. were found in which the name of the consignor was shown as M/s. Andhra Petro-Chemicals Ltd. Vishakapattanam and the name of the assessee was mentioned as M/s. Guljag Industries (assessee - appellant herein). Along with the goods, Form ST 18A No.236084 was also found in which the goods transported was not declared though the same was duly signed. Under the above circumstances the A.O. came to the conclusion that there was a contravention of the provisions of Section 22A(3) of the Rajasthan Sales Tax Act, 1954 (for short, 'RST Act 1954') read with Rule 62A(3) of the Rajasthan Sales Tax Rules, 1955 (for short, 'RST Rules 1955'). He accordingly issued notice under Section 22A(7) of the RST Act 1954 calling upon M/s. Guljag Industries to show cause why penalty was not leviable for violation of Section 22A(3) of the RST Act 1954. In response to the said notice M/s. Guljag Industries submitted that there was mistake in filing the declaration form and, therefore, there was no intention of tax evasion. It was further submitted that the said declaration Form ST 18A (Form No.18A) was supposed to be filled in by the consignor but due to lack of knowledge of Hindi language the same could not be filled in by the consignor. The AO did not accept the Explanation given by M/s. Guljag Industries. The AO refused to accept the unfilled form as a declaration. Accordingly, he imposed the penalty under Section 22A(7) of the RST Act 1954. Aggrieved by the decision of the AO, M/s. Guljag Industries preferred Appeal No.77/RST/JUC/95-96. By order dated 10.8.99, Dy. Commissioner (Appeals) came to the conclusion that under Rule 62A(3) of the Rajasthan Sales Tax Rules, 1955 of RST Rules 1955 the purchasing dealer was required to give the requisite declaration in Form ST 18A to the selling dealer. According to the appellate authority, the responsibility to fill the form was on M/s. Guljag Industries. That, M/s. Guljag Industries carried on business from Rajasthan. It was familiar with Hindi language. Therefore, the unfilled Form No.18A cannot be accepted as a declaration. The appeal was accordingly dismissed. Aggrieved by the decision of Dy. Commissioner (Appeals), M/s. Guljag Industries carried the matter in second appeal to Rajasthan Tax Board, Ajmer being Appeal No.1375/99/Jodhpur. By that time Rajasthan Sales Tax Act 1994 (for short, 'RST Act 1994') came to replace RST Act 1954. However, Section 78(5) of RST Act 1994 was in pari materia to Section 22A(7) of RST Act 1954. By order dated 27.2.2002 the Board came to the conclusion that penalty could not be imposed without establishing guilty mind (mens rea) on the part of M/s. Guljag Industries (assessee). The appeal was allowed.
(3.) AGGRIEVED by the decision of the Board, the Department carried the matter in revision to the Rajasthan High Court. By order dated 14.10.03 the single Judge held that presence of mens rea was not a sine qua non for levying penalty in case of contravention of Section 22A(3) of the RST Act 1954 (Section 78(2) of the RST Act 1994). By the said order the learned single Judge held that in the present case Form No.18A was totally blank though signed by the consignee; that it was the duty of the consignee or his agent to see that the form was returned to the transporter with complete details by the consignor. It was further held that the filling up of the form was the duty of the consignee/importer. The learned single Judge held that in the circumstances since the consignee was from Rajasthan and since the form was unfilled it cannot be said that the error was accidental. That, moreover in both the States, namely, Andhra Pradesh (Vishakapattanam) and Rajasthan, there are Hindi-speaking persons. In the circumstances, the learned single Judge held that the form was deliberately not filled in which indicated an intention of the assessee M/s. Guljag Industries to evade the tax. Accordingly, the order of the Board was set aside. AGGRIEVED by the order passed in revision by the single Judge the assessee (M/s. Guljag Industries) has come to this Court by way of Civil Appeal No.5197 of 2005. In Civil Appeal No.5240 of 2005 - Assistant Commercial Taxes Officer v. M/s. Guljag Industries Ltd. preferred by the Department the facts are as follows.;