- (1.) THIS writ petition is directed against the judgment dated 25. 8. 1998 passed by the Rajasthan Taxation Tribunal, Jodhpur, whereby the original application preferred by the respondent Dealer u/s. 8 of the Rajasthan Taxation Tribunal Act, 1995 has been allowed and notice dated 29. 7. 97 issued to the respondent by the Assistant Commercial Taxes Officer, Flying Squad -II, Jodhpur in exercise of powers conferred under Sec. 78 of the Act has been quashed and set aside.
(2.) THE brief facts giving rise to the present writ petition are as follows: In the course of business the respondent placed an order to M/s Kamani Oil Industries, Kochi to supply a truck-load of coconut oil and send a demand draft for Rs. 4, 70, 000/-bearing D. D. No. 554376 issued in favour of M/s Kamani Oil Industries. The said Industries sent 560 Tins of coconut oil vide bill dated 24. 7. 97 to the respondent firm. The selling dealer at Tamil Nadu sent the said 560 Tins of coconut oil vide bill No. 1043 dated 24. 7. 97 in Truck No. KA-01/a-7898. The selling dealer M/s. S. Thangavel of Tamil Nadu sent the said goods along with all the necessary documents, including the bill No. 3/46 dated 24. 7. 97 bilty No. 1043 and a declaration as prescribed by the Tamil Nadu Sales Tax Act. A further declaration form ST 18a as prescribed by the Rajasthan Sales Tax Act 1994 and the Rules framed thereunder was also sent. The said goods were intercepted at Banar Road Octroi Naka and the driver of the truck one Ponnuswamy was asked to produce the documents. He produced all the documents including the bills, declaration forms etc. and the declaration form ST 18a before the Assistant Commercial Taxes Officer, Flying Squad-II. On a perusal of the aforesaid documents, the Assistant Commercial Taxes Officer found that ST Form 18-A is not fully filled up and details required to be given in Column No. 3 to 9 were not filled in by the selling dealer Thangavel of Tamil Nadu. A show cause notice was issued to the Respondent Company to show cause why the penalty u/s. 78 (5) of the Rajasthan Sales Tax Act, 1994 may not be imposed upon the respondent. According to the respondent, he met the second petitioner herein and apprised the facts that since the said Form 18a is printed in Hindi and as such, the selling dealer at Tamil Nadu who did not know Hindi could not fill up the form completely. But, however, it was pointed out that the name of the consignor and the consignee had been shown in the said Form and the goods in question were accompanied with all the relevant documents and as such, there is no question of tax evasion or mens rea on the part of the respondent. The second petitioner did not pay Need to the submissions made by the respondent and however, stated that furnishing of ST 18a is a mandatory requirement and since ST 18a is not completely filled up it is as good as no declaration Form had been furnished and as such levying a penalty under Sec. 78 (5) of the Act is attracted. The 2nd petitioner was bent upon to levy the penalty being 30% of the value of the goods under Sec. 78 (5) of he Rajasthan Sales Tax Act and since the goods in question are perishable in nature the respondent approached the Rajasthan Taxation Tribunal at Jodhpur by filing the original Application No. 175/97 questioning the action of the 2nd petitioner herein and to quash the show cause notice dated 29. 7. 1997. Along with the original application, the respondent filed Annexures No. 1 to 9. The petitioners herein filed reply to the original application before the Tribunal. A preliminary objection stating that the power vested in the Tribunal under Sec. 8 of the Act of 1995 is not unlimited and unqualified and the same is restricted with certain limitations contained in the said section itself. It was submitted that the respondent was under an obligation to file an appropriate reply to the show cause notice and produce the relevant records/documents in his defence. Instead, the respondent has directly approached the Tribunal when there is no compelling circumstances existing which could justify the entertainment of the original Application against the show cause notice. It is further submitted that in view of the preliminary objection, the respondent/applicant before the Tribunal should be relegated to approach the competent authority under the Act for redressal of his grievance, if any, and the respondent cannot be allowed to bypass the remedy available to him under the Statute itself inasmuch as, if the respondent feels aggrieved by the order which may be passed by the authority, it can prefer an appeal under Sec. 84 of the Act of 1994 before the Dy. Commissioner (Appeals), Jodhpur.
(3.) ON merits, it was submitted that the Form ST 18a which has been produced by the respondent at the time of checking was not filled in accordance with law and the mere mentioning of the RST and CST Numbers of the purchasing dealer and Registration Number of selling dealer is not sufficient. It was further contended that the goods should accompany with the duly filled in Form ST-18a and since the goods were not accompanied with the documents it attracts the penalty u/s. 78 of the Act. The respondent herein filed a rejoinder stating that his case squarely fall in category (ii) & (iii) of Sec. 8 as the case in hand involves substantial questions of law relating to the interpretation of Sec. 78, Rule 53, and Forms ST 18a, and his original Application before the Tribunal, without exhausting the alternative remedy, is maintainable and justifiable in law. The Rajasthan Taxation Tribunal, by order dated 25. 8. 98, after careful analysis of the facts and circumstances of the case and the documents filed, came to the conclusion that there was no attempt on the part of the respondent herein to evade the valuation of a declaration in Form ST 18a along with the goods in transit, and there is no intention to evade tax. Therefore, the Tribunal held that the proceedings u/s. 78 of the Rajasthan Sales Tax Act for the imposition of the penalty, were not warranted in the facts and circumstances of the case and, accordingly, quashed the impugned notice dated 29. 7. 97. The State Government was also advised to consider introduction of bilingual forms for such purposes. ;