BALIA, J. - (1.) THE petitioner has filed this petition challenging the order levying penalty under Sec. 78 (5) of the Rajasthan Sales Tax Act, 1994 in a sum equal to 30% of the value of the goods while they were in transit. THE penalty has been levied solely on the ground that form ST 18-A which was accompanying the goods in transit at the time of checking was incomplete in some respects. No other breach of requirement of sub-sec. (2) of Sec. 78 of the Act has been found.
(2.) THE validity of the levy of penalty has been challenged inter-alia on the ground that the provisions of Sec. 78 (5) of the Act authorising the levy of penalty equal to 30% of the value of the goods are ultra vires to the Article 14 of the Constitution of India contending that Rule 53 of the Rajasthan Sales Tax Rules, 1995 which requires a declaration from the importer in Form ST 18-A/18-AA by the carrier of the goods to be produced at the time of inspection while entering the territory of Rajasthan at the checkpost is also invalid. So far as vires of Sec. 78 (5) are concerned, a Division Bench of this Court in D. B. Civil Special Appeal No. 1902/99 (D. P. Metals vs. State of Rajasthan), decided on 16. 8. 2000 (1) has held the same to be ultra vires and has reached the following conclusion: (1) the parent provision of the Sec. 78 so far as it requires carrying the documents mentioned under sub Sec. (2) by the transporter whose position ordinarily does not go beyond a witness about goods carried through them, for the purpose of divulging detailed information about the goods carried out by the transporter and about the consignor and the consignee itself at the checkpost or barrier to any authorised officer under Sec. 78 as part of machinery provision for collecting evidence about goods coming in or going out of or moving within the State, can be considered as intended to prevent and check evasion and avoidance of tax and in aid of making effective the levy which have arisen or likely to arise within the State, are provisions incidental and ancillary in aid of main subject levy and collection of sales tax. (2) Provision as to notice before imposing penalty is not an empty formality for imposing penalty, for non production or production of incomplete documents, but is intended to given an effective opportunity of hearing to show that no penalty is at all leviable. If it is reasonably established that such default is not with any intention to evade or avoid tax, but is bonafide default, the breach does not travel beyond technical breach, for which it is not compulsory to impose penalty. Such question has to be determined in each case on its own facts and circumstances. (3) No opinion is expressed on the validity of requirement to carry declarations in Form ST 18a or ST 18aa with goods, in view of no challenge made in the petition. (4) The provisions for carrying declaration of the importer in the Form No. ST 18-A or ST 18aa by the transporter or carrier is not treated to be mandatorily required and it is held that the production of such declaration later on during the course of enquiry even by the importer is substantial compliance of the provision. (5) Lastly, the penalty u/s. 78 (5) linked with value of goods equal to 30% thereof imposable on person incharge of the goods in transit who is not owner of the goods and who is also not a dealer in the goods, for breach of obligation of divulging information and particulars relating to goods in his charge and the consignor and the consignee is highly unreasonable having no reasonable and proximate nexus with the obligation cast on the transporter and the object of the provision, the same, therefore, is unconstitutional. (Santlal's case ). (6) However a reasonable penalty is imposable on transporter as a consequence for breach of obligation to divulge such information truely and faithfully which is in his possession and can reasonably be required of them to obtain from other sources while booking goods for transport. Until any specific provision for levy of tax is enacted by the legislature, he may be subjected to penalty as envisaged under Sec. 68 of the Act. From the aforesaid, it is apparent that in the aforesaid decision the Court has not expressed any opinion on the validity of Rule 53. In this case, apart from challenging the validity of Sec. 78 (5) of the Act of 1994, the petitioner has also contended that Rule 53 of the Rules of 1995 is ultra vires Article 304 (b) as it amounts to unreasonable restriction on free movement of trade and even if same amounts to reasonable restrictions within the meaning of Article 19 (6) and Article 304 (b) of the Constitution still as the requirement under Rule 53 amounts to a restriction on the freedom of trade, commerce or intercourse with or within the State as may be required in the public interest, the said provisions are inoperative because the State legislature is not empowered to introduce such a provision without the previous sanction of the President in view of proviso to Article 304 (b ). As no previous sanction of the President was obtained before making the impugned rules, the same are ultra vires. However, we are of the opinion that the question cannot be decided in the present case. Firstly, rule 53 has been framed primarily to give effect to Sec. 81 of the parent Act of 1955, which reads as under:- " S. 81. Import of goods into the State or export of goods outside the State (1) Any registered dealer or any other person who intends to import or bring any goods, or otherwise receives within the State of Rajasthan goods as may be notified by the State Govt. from outside the State, for sale, use, consumption or for other disposal in the State shall unless otherwise prescribed, obtain a prescribed declaration form from the prescribed authority and shall cause it to be carried with the goods as part of the documents specified in Sub-Sec. (2) of Sec. 78 and produced along with other documents before the Incharge of the entry check-post of the State. (2) Any registered dealer or any other person, by whom any goods taxable within the State of Rajasthan are despatched from within the State to place outside the State either in the course of inter-State trade or commerce or for sale outside the State, such registered dealer or other person shall, unless otherwise prescribed, furnish or cause to be furnished a prescribed declaration form obtained from the prescribed authority as part of the documents specified in Sub-s. (2) of Sec. 78, before the Incharge of the exit check-post of the State. " Sec. 81 of the Act of 1955 obligates registered dealer and importer of the goods from outside Rajasthan for sale, use, consumption or otherwise disposal to give a declaration in the prescribed form. It also obligates such importer of the goods within the State of Rajasthan by dint of Sec. 81 to obtain a prescribed declaration form from the prescribed authority and cause the duly filled form under his signatures to be carried with the goods as one of the documents specified under Sub. sec. (2) of Sec. 78 and cause it to be produced alongwith other documents before the incharge of the entry-chekpost of the State. Rule 53 is to serve twin directions contained in Sec. 81. So long as the obligation casted under parent Act continues to operate, the declarations of Rule 53 to be ultra vires would remain futile. We find that no challenge to any part of Sec. 81 of the parent Act has been made in the writ petition nor any ground of any invalidity impinging Sec. 81 has been contended before us during the course of arguments. In the absence of such a challenge and its consideration, considering the validity of Rule 53 in the light of Article 304 (b) would be merely an academic exercise.
(3.) MOREOVER, keeping in view the opinion expressed by this Court in D. P. Metals case, referred to above (1) affirming the view expressed by this Court in ACTO vs. Voltas Ltd. (2) decided on 21. 1. 2000 and Mahaveer Conductors vs. ACTO (3) that penalty for mere non-production of documents by the transporter at the time of inspection does not result in automatic levy of penalty without having an opportunity to show existence of circumstances in which penalty is not leviable and that no penalty is leviable unless nexus between the default committed and intention to evade or avoid any tax on the sale or purchase of goods within the State of Rajasthan is established. Agreeing with the view expressed in Voltas Ltd. and other cases referred to in the above judgment, the Division Bench has further held that provisions for carrying declaration of the importer in the Form No. 18-A or 18-AA by the transporter or carrier is not treated to be mandatory requirement and that the production of such declaration form later on during the course of enquiry even by the importer is substantial compliance of the provisions. In that view of the matter, we do not deem it necessary necessary to examine the issue about vires of Rule 53 in this case. With this premise, we further find that in the present case the penalty has solely been imposed because Form 18-A which accompanied the goods in transit was incomplete in some ways. However, no deficiency or inaccuracy of information furnished in other documents accompanying the goods have been found. In these circumstances, it has to be held that all the requisite information required to be disclosed in the declaration ST 18-A was otherwise available as emanating from the other requisite documents. The information required in declaration Form ST 18-A can be best noticed from the form itself which is reproduced hereinbelow:- FORM S. T. 18a (See rule 61a (3)) COUNTERFOIL/duplicate/original Declaration Book No. . . . . . . . . S. No. . . . . . . . . . . . . . . Name of the Office Seal of the Officer of Issue Issuing Date of Issue. . . . . . . . Authority To The Officer-in-charge Checkpost,. . . . . . . . District. . . . . . Declared and Certified that the goods, particulars of which are given below, have been imported by me/us for purposes mentioned in the rule, and hold myself/ourselves liable for payment of tax as per law to the Government of the sale thereof: (1) Name and complete address of the Consignor. (2) (a) Name and complete address of the Consignee (b) R. C. No. of the Consignee under RST and CST Act. (3) Nature of transactions: (a) Consignment (b) Depot Transfer (c) Inter-State sale (d) or any other. (4) Description of goods (5) Quantity of packages/goods (6) Weight of goods (7) Price/estimated value of goods in Rs. (8) Invoice No. 1 Challan No. and date (if any) (9) (a) Name and full address of the carrier (transport Co. of owner or the owner of the Vehicle ). (b) Registration Certificate No. of the Vehicle. I,. . . . . . . . . . . . Proprietor/manager/partner/director/karta of H. U. F. /principal Officer hereby declare that the information mentioned in the above statement is true to the best of my knowledge and belief. Nothing has been concealed and no wrong disclosure has been made. Signature Status Seal of the dealer Seal of the Consignee with R. S. T. /c. S. T. Nos. of registration. Dated. . . . . . . . The perusal of the aforesaid form shows that the requirement of the declaration is firstly a declaration or an undertaking by the declarant to hold himself liable to pay taxes that may become payable on the sale of the goods imported by him. Mere signatures of the importer under the form which is to be obtained from the prescribed authority under his signature and is printed form, fulfils this requirement. In the present case, it has not been found that the declaration did not contain the signatures of the importer. The other informations that is required to be furnished by the importer in the said declaration are: (1) name and complete address of the consignor, (2) (a) name and complete address of the consignee, (b) Registration Certificate number of the consignee under Rajasthan Sales Tax Act/central Sales Tax Act, (3) nature of transactions: (a) consignment (b) depot transfers (c) inter-State sales (d) any other nature. (4) description of goods (5) quantity of packages/goods (6) weight of goods (7) estimated value of the goods in rupees (8) invoice number or challan number and date of invoice or challan (9) (a) name and full address of the carrier (transport company of the owner of the vehicle) and lastly, (b) the registration number of the vehicle. ;