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Bhiwadi

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Section 78(5) of the Rajasthan Sales Tax Act, 1994 (for short ‘the Act’).=The Assistant Commercial Taxes Officer, Bhiwadi had levied penalty in exercise of his powers under Section 78(5) of the Act against the owner of the vehicle who was carrying certain goods of the assessee.- “If one reads sub-section (5) of Section 78 in its entirety 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 18A 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 22.3.02 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 the Form ST 18A. 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) refers to “person in-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”.= “person in-charge of the goods” under the old Section 78(5) is substituted by the words “the owner of the goods or a person authorized in writing by such owner or person in-charge of the goods”.- Therefore, we allow this appeal, set aside the order passed by the High Court and restore the order passed by the Assistant Commercial Taxes Officer, Bhiwadi ASSISTANT COMMERCIAL TAXES OFFICER Vs. M/S PAREKH ENTERPRISES .

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40817     IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION   CIVIL APPEAL NO.8216 OF 2013 (@ SPECIAL LEAVE PETITION (C) NO.4194 OF 2010)   ASSISTANT COMMERCIAL TAXES OFFICER APPELLANT(S)   VERSUS   M/S PAREKH ENTERPRISES RESPONDENT(S)   O R D E R       1. Leave granted.   2. This … Continue reading

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