ORDER [ENTITY], J.
1. This writ appeal shall also govern disposal of [CASE NUMBER]. All these appeals have been filed against the common order passed on April 12, 2006 by the learned single judge in [CASE NUMBER] between the same parties.
2. According to the petitioner, the petitioner is a registered company, dealing in leasing out equipment and machinery on rental basis. The petitioner contended before the authorities that it purchased earth moving equipments, namely, JCB backhoe loaders, in Jaipur and after obtaining temporary registration certificate from the R. T. O., Jaipur, despatched the JCBs from Rajasthan to Harda, in the State of Madhya Pradesh, through transporter, respondent No. 3, Truck Operators' Union. On September 23, 2005 the trucks carrying JCBs were checked at the border check-post, Dhabla-Jodi, Khilchipur, in District Rajgarh (M. P.). The Check-post Officer found that the documents in relation to the JCBs were not in order and, therefore, issued the prescribed show cause notice for payment of tax together with penalty under the provisions of the [ACT] (hereinafter referred to as, "the Act"). The petitioner appeared before the Check-post Officer and represented to him that the machines were being sent to Harda in Madhya Pradesh, on rental basis and not for sale and, therefore, there was no case of evasion of tax. The Check-post Officer, however, did not accept the petitioner's contention and vide order dated October 22, 2005, he imposed the penalty in respect of each JCB detained at the check-post. The petitioner challenged these orders before the Commissioner, under [SECTION] of the Act, but the revision was dismissed. It was in this context that the petitioner challenged the orders dated January 23, 2006 and October 22, 2005 and the demand made vide notice dated October 23, 2005. The learned single judge observed that in the absence of the documents, the Check-post Officer rightly initiated action provided under the law and passed the orders impugned and raised the demand. The transporters were given adequate opportunity to dislodge the presumption that no attempt was made to facilitate evasion of the tax and the petitioner had not only a chance before the revenue authority but also before the revisional authority, by virtue of the order of the court in the earlier round of litigation and dismissed the petition. It is against this dismissal that the above appeals have been filed by the petitioner.
3. In relation to the objection of the learned Government Advocate that the matter has apparently been decided under [SECTION] of the [ACT] by the learned single judge against which appeal is not provided, Mr. [ENTITY] has invited attention to the decision in [PRECEDENT] and stated that when a writ of certiorari was being claimed, it was not a case where the supervisory power of this Court was invoked under [SECTION] to keep the lower Tribunal within the bounds of its authority. Reference has also been made to the decision in [PRECEDENT] , particularly to paragraph 24, where their Lordships have described the distinction between the exercise of power under [SECTION] of the [ACT] and under [SECTION] thereof. While from the order passed by the learned single judge it is not clear whether the power has been exercised under [SECTION] or [SECTION] of the [ACT], we proceed on the assumption that the learned single judge has also acted under [SECTION] of the [ACT] and considered the merits of these appeals.
4. Learned Counsel for the appellant has invited our attention to [SECTION] of the Act, especially to Sub-section (4) thereof in support of his contention that it is only in relation to the notified goods that the provision is attracted. His contention is that since admittedly JCBs have not been notified as the goods to which [SECTION] of the Act applies, the action of the respondents in seizing the goods and subjecting the goods to penalty is illegal and highhanded. For convenience [SECTION] are reproduced hereunder:
45A. Establishment of check-posts.-(1) The State Government or the Commissioner may, with a view to prevent or check evasion of tax under this Act, set up or erect in such manner as may be prescribed, check-posts or barriers at such places in the State, excluding railway premises, as may be notified:
Provided that the Commissioner shall not set up a check-post or erect a barrier for a period exceeding six months at time.
(2) to (3)
(4) Every person transporting such goods as may be notified by the State Government in this behalf (hereinafter referred to in this section as the transporter) shall carry with him an invoice, bill or challan or any other document, by whatever name called, issued by the consignor of the goods giving such particulars as may be prescribed.
(5) to (5-A)
(7) If the Check-post Officer finds after searching the vehicle and verifying the declaration or other documents relating to the goods, that-
(a) goods notified under Sub-section (4) are being transported in respect of which the transporter has not filed any declaration, or
(b) the declaration filed in respect of any goods is false or incorrect, either in respect of the kind of goods, or the quantity of goods transported, or the value thereof, or
(c) consignor or the consignee of the goods is shown to be a dealer registered under this Act, while the records available in his office do not show the existence of such a dealer, such officer may presume, until the contrary is proved, that an attempt was being made to facilitate the evasion of tax in respect of such goods and he may, after recording his reason therefor in writing, a copy of which shall be forthwith supplied to the transporter, seize such goods or the vehicle along with the goods in such manner as may be prescribed.
5. Learned Government Advocate for the respondents-State has, however, placed reliance on [SECTION] of the Act, which grants power to the authorities to check goods in transit. Referring to [SECTION], learned Government Advocate has pointed out that the transporter is enjoined with a duty to carry with him an invoice, bill or challan or any other document, by whatever name called, issued by the consignor of the goods giving such particulars as may be prescribed. [SECTION] reads as under:
45D. Power to check goods in transit.-(1)
(1-A)
(2) Every transporter transporting by road any goods in the State of Madhya Pradesh shall carry with him an invoice, bill or challan or any other document, by whatever name called, issued by the consignor of the goods giving such particulars as may be prescribed.
6. Learned Counsel for the appellant submits that there is patent ambiguity in the provisions contained in [SECTION] inasmuch as the invoice, bill or challan or any other document issued by the consignor should be in the manner as may be prescribed. At a glance, the provision does give indication that it is only the documents which are prescribed to be produced before the authority, but on closer scrutiny it appears that insofar as invoice, bill or challan are concerned, they are required to be produced and it is not necessary that in case of these documents particulars should be prescribed. It is only in relation to "any other document" that the qualifying clause "may be prescribed", is attracted. [SECTION] provides for action to be taken for contravention of [SECTION]. [SECTION] reads as follows:
45D. Power to check goods in transit.-(1) to (3)
(4) If the officer referred to in Sub-section (3) finds on the inspection of the vehicle that the transporter is not carrying the documents or the documents being a carried are not in order or the transporter is not carrying a copy of the declaration, he may direct the transporter to take the vehicle along with the goods and the documents to the nearest check-post or any Commercial Tax Officer to be named by him and stop it and keep it stationary there till such time as may be required for action in accordance with the provisions of [SECTION]
7. From the above provision it is manifest that if the officer taking action finds on inspection of the bill that the transporter is not carrying the documents or the documents being carried are not in order, he may direct the transporter to take the vehicle along with the goods and the documents to the nearest check-post or any Commercial Tax Officer to be named by him and stop it and keep it stationary there till such time as may be required for action in accordance with the provisions of [SECTION] Learned Counsel for the appellant submits that once it is clear that the provisions of [SECTION] have been incorporated for taking further action, [SECTION] of the Act becomes operative and, therefore, unless any of the ingredients attracting penalty contained in the said sub-section is attracted, the goods cannot be subjected to any penalty. We have already reproduced Sub-section (7) hereinabove. Sub-section (7) has three Clauses : (a), (b) and (c). Clause (a) relates to goods notified under [SECTION], being transported in respect of which the transporter has not filed any declaration. This clause is not attracted as it is an admitted position that the goods which are being transported were not notified. Clause (b) is attracted if the declaration filed in respect of any goods is false or incorrect either in respect of the kind of goods or quantity of goods to be transported or the value thereof. Contention of the learned Counsel is that there was no suppression, indeed, there could not have been in respect of the JCB machines with regard to the kind of goods or the quantity of goods transported and since according to the appellant, it was a case of stock transfer 95 VAT and Service Tax Cases 5-10-2007 the provision was not attracted. Clause (c) contemplates a contingency where consignor or consignee of the goods is shown to be a dealer registered under the Act, while the records available in the office do not show the existence of such dealer.
8. Coming to the first part of the contention that [SECTION] would be attracted only in relation to the notified goods, then notwithstanding that goods have been seized in violation of the provisions contained in [SECTION] of the Act, the other conditions present in [SECTION] are first required to be satisfied before proceeding to take any action thereunder.
9. Though the argument has been advanced on the basis of the provision of [SECTION], the fallacy of the argument becomes apparent when the provisions of [SECTION] and [SECTION] are examined. Under [SECTION], if the officer finds on the inspection of the vehicle that the transporter is not carrying the documents or the documents being carried are not in order or the transporter is not carrying a copy of the declaration, he may direct the transporter to take the vehicle along with the goods and the documents to the nearest check-post or any Commercial Tax Officer to be named by him and stop it and keep it stationary till such time as may be required for action in accordance with the provision of [SECTION] From [SECTION] it is luculent that the satisfaction that is derived is on the basis of [SECTION] and not in accordance with either [SECTION] or [SECTION] of the Act. The reference to [SECTION] is a reference only to its machinery provision and not the substantive requirement contained therein which is attracted in altogether a different sphere. We are, therefore, of the considered view that once the satisfaction is derived under [SECTION] of the Act, then for the purpose of taking action, reference can be made to [SECTION]. Clause (b) of Sub-section (7) relates to the declaration filed in respect of any goods which is incorrect either in respect of the kind of goods or the quality of goods transported or the value thereof and provides for a presumption, until contrary is proved, that an attempt was being made to facilitate the evasion of tax in respect of such goods. It proceeds to grant further power of seizure of the goods or the vehicle along with the goods in such manner as may be prescribed. The provisions following Sub-section (7) also refer to the manner in which further action is to be taken.
10. We may also refer to the declaration filed by the transporter of which a copy is appended as annexure P-5. In this declaration it was stated that it was a case of stock transfer and no sale was involved in the transaction. However, though it is admitted that goods moving from Rajasthan were destined for Harda, nothing was brought on record to show that the appellant had any branch at Harda to which the goods were being transported. The stand was later shifted and it was stated that though it was mentioned that it was a case of stock transfer, the goods were being sent to Harda on lease, as the business of the appellant was to give machinery on hire. Learned Government Advocate has pointed out that what was stated was that the goods were being sent to M/s. Y. B. Earth Movers and later name of Mr. [ENTITY] was disclosed as proprietor of M/s. Y. B. Earth Movers. On enquiry, no person by the said name could be traced out and Mr. [ENTITY] had participated in the proceedings. Apparently the goods were destined for sale and, therefore, the information which was given vide annexure P-5 was false and misleading. We are, therefore, of the view that insofar as the writ petitions have been dismissed by the learned single judge, no interference is called for.
11. However, learned Counsel for the appellant submits that without giving proper opportunity to the parties with regard to the quantum of penalty, the authorities have imposed the maximum penalty provided by law. The counsel for the appellant contends that it is not that in all the cases the maximum penalty is attracted and the authority is required to give cogent and convincing reasons as to why the maximum penalty is being imposed in a particular case. We have gone through the order dated January 23, 2006 (annexure P-8) of the Commissioner of Commercial Tax, Ujjain. Though he has given detailed reason why the penalty is attracted, he has not given any reason why the maximum penalty is imposable. Under these circumstances, while dismissing the appeals on all other grounds, we direct the revisional authority to give an opportunity to the appellant and thereafter to decide the quantum of penalty. Meanwhile, status quo will be maintained and coercive steps to recover the amount shall remain in abeyance.
12. With the above direction, the appeals are disposed of.