Judgment :- 1. In this writ petition under Art.226 of the Constitution Mr. T.S. Krishnamoorthy Iyer learned counsel for the petitioner, challenges the proceedings taken as against the goods conveyed by him in a lorry KLT. 1747 by the respondent in these proceedings on 9-9-1959. 2. According to the petitioner, after purchasing the goods in question he has been transporting them in the lorry in question from Trivandrum to Nedumangad and that on the said day in the afternoon, the said lorry was checked by the Sales Tax Officer in question and the goods were also seized and taken to the Fort Police Station. 3. It is the further case of the petitioner that on coming to know about this matter he went to the Police Station where the lorry had been parked with the goods and attempted to satisfy the respondent Sales Tax Officer who, according to him, was present at the Station by producing the necessary bills regarding the ownership of goods and also of the non-liability of the goods for payment of sales-tax under the Act. It is further averred that the Sales-tax Officer demanded a payment of Rs. 1049-12 nP. towards penal tax and compounding fee and there was a threat of confiscation if the amount was not paid and, therefore, in consequence the amount was paid and goods were got released. 4. On the next day the petitioner states that he put in an application before the officer, namely, the Sales-tax Officer, 1st Circle, Trivandrum, for the issue of a valid receipt regarding the payment of Rs. 1049-12nP. made on the prior day. There was a reply received from the Sales-tax Officer dated 11-9-1959 to the effect that the petitioner should satisfy him that he is a registered dealer. There was a further request made by the petitioner on 17-9-1959 for furnishing him with copy of the order imposing penalty stated to have been passed by the officer and the reply to this communication was to the effect that no order has been passed against the petitioner imposing penal tax and compounding fee and, therefore, no copies of proceedings are available. 5. According to the petitioner, he has also moved the Deputy Commissioner, Agricultural Income-tax and Sales-tax by revision petition as early as November 1959 and it has not been so far heard by the officer. 6. 5. According to the petitioner, he has also moved the Deputy Commissioner, Agricultural Income-tax and Sales-tax by revision petition as early as November 1959 and it has not been so far heard by the officer. 6. Ultimately, the petitioner states that the action of the respondent in either assessing the goods or levying penalty on threat of confiscation has been taken and done in utter violation of the provisions of S.16A of the General-Sales Tax Act read with R.28A & 28B of the Rules. 7. The main attack that is made against these orders is that the petitioner had absolutely no opportunity of placing his case or having the matter investigated that the goods belonged to him and that transaction in question did not attract liability for sales-tax under the Act. No doubt, there is one attack regarding the constitutionality of the provisions contained in S.16A of the General Sales-tax Act. 8. The respondent has filed a counter-affidavit through the Assistant Secretary (Law) Agricultural Income-tax and Sales-tax Department, Ernakulam. The respondent states that in the course of checking of the goods vehicle at about 2-30 P.M. on 9-9-1959 the respondent saw the particular vehicle passing along the Kochar Road. 9. The vehicle was stopped and the driver was asked to show the records necessary to be produced under S.16A of the Act. According to the officer, no records were available either with the driver or one Shri Assanar Pillai who was also in the lorry. A statement was taken from these people to that effect. 10. The respondent however states that as the attitude of the driver and the other occupant of the vehicle, obviously referring to Shri Assanar Pillai, was threatening the Police were called and the Lorry was taken to the Port Police Station where a list of goods was prepared, and the goods were also held at the Police Station, itself. 11. It is further stated by the respondent that after his departure from the Station at about 5 P.M. Sri Assanar Pillai approached him and stated that no records were available for the goods and that he agreed to pay the penalty and compounding fee. Accordingly a tax of Rs. 299.12 and a compounding fee of Rs. 750 were collected from Shri Assanar Pillai and the goods released. A temporary receipt was also given for the sum of Rs. Accordingly a tax of Rs. 299.12 and a compounding fee of Rs. 750 were collected from Shri Assanar Pillai and the goods released. A temporary receipt was also given for the sum of Rs. 104912 by the respondent to Shri Assanar Pillai 12. The respondent proceeds to say that on the next day, i. e., on 10-9-1959, Shri Assanar Pillai appeared in the respondent's office with an application from the writ petitioner, namely, Shri M. Mohammed, for the issue of a proper and valid receipt in respect of the amount collected from him the previous day by the officer and according to the Officer the said Assanar Pillai was requested to produce a certificate from the Sales-tax Officer to show that he was a registered dealer and there was a further request to surrender the temporary receipt issued on 9-9-1959. As no certificate was produced a final receipt as asked for by him was not granted 13. The Assistant Secretary further proceeds to say that there was an application filed by Advocate Shri A. Abu Baker representing the writ petitioner for copies of proceedings of the Sales Tax Officer taken on 9-9-1959 and it is also stated that a reply was given to the said Advocate that no proceedings were taken against the writ petitioner on 9-9-1959 and no order was passed against him. According to the Department no valid revision has been filed by the petitioner before the Deputy Commissioner of Agricultural Income-tax and Sales-tax, Trivandrum, which could be stated to be pending as mentioned in the affidavit. The respondent winds up the counter-affidavit by stating that all actions taken by the respondent were in accordance with the provisions of the Act and the Rules. 14. As I mentioned earlier, the main attack is that the proceedings taken by the respondent as against the writ petitioner are entirely opposed to the provisions of S.16A & R.28A & 28B of the General Sales-tax Rules. 15. It is not necessary for me to consider the attack made regarding the constitutionality of the provisions contained in S.16A of the Act as this writ petition can be disposed of without expressing a view one way or the other. 16. 15. It is not necessary for me to consider the attack made regarding the constitutionality of the provisions contained in S.16A of the Act as this writ petition can be disposed of without expressing a view one way or the other. 16. It has been strenuously urged before me by the learned Government Pleader appearing for the Revenue that in this case on 9-9-1959 when the goods were seized the documents which are required to be carried were admittedly not available either with the driver or Shri Assanar Pillai and they have given statements to that effect. There is also, according to the Government Pleader, another important circumstance in this case, namely, Shri Assanar Pillai has given a statement that day to the effect that the documents are not available and that though the goods belonged to the writ petitioner who is his brother-in-law the said Assanar Pillai is prepared to pay the penalty and compounding fee on behalf of the writ petitioner who is the owner of the goods. Therefore, this offer to pay on behalf of the owner by Shri Assanar Pillai, according to the learned Government Pleader, absolves the Department from the duty of conducting any enquiry into this matter or taking further proceedings after due notice to the owner of the goods. According to the learned Government Pleader, Shri Assanar Pillai must be considered to have been acting as the agent of the owner of the goods, namely, the writ petitioner in this court and, therefore, when once he has promised to pay the amount on behalf of the owner and actually paid the amount no further grievance can be entertained in this court at the instance of the writ petitioner. 17. I am not inclined to accept any of the contentions urged on behalf of the respondent by the learned Government Pleader. The acceptance of these contentions will really amount to shutting one's eyes to the mandatory provisions of the statute and rules which make it obligatory on the part of the officers situated like the respondent before me to have due regard to these provisions which also state that orders levying penalty in such circumstances and further orders of confiscation can be made only after due notice to the owner of the goods who is sought to be affected by those proceedings. 18. 18. In this case the contention of the learned Government Pleader that Shri Assanar Pillai should be considered to be the agent of the petitioner need not detain me at all because a perusal of the communication sent by the Department to the petitioner in response to his request for copies of the order, Ext. P3, clearly shows that the Department had at no time in their view that the person who is sought to be affected in these proceedings is the writ petitioner who is the real owner of the goods and it will also show that the Department never treated Shri Assanar Pillai as representing the real owner of the goods. When the petitioner admittedly made an application for being furnished with copies of the orders levying penalty and collecting both the penalty and the compounding fee from Shri Assanar Pillai the Revenue replies by saying: "No order was passed against Shri M. Mohammed, Merchant, Nettarachira Road, Nedumangad. Four copying sheets received from you are returned herewith." 19. The fact that a person who is in the vehicle and who does not represent the real owner of the goods is magnanimous enough or is prepared to oblige the department by offering to pay any amount that the Department wants, or thinks proper to collect under the provisions of this statute will not in my view, stand in the way of the owner of the goods who is considered to be affected by the order levying penalty or confiscation of the goods challenging the order of the officer concerned. 20. There is also another point, namely, that in spite of a categ orical and positive statement made in the affidavit filed by the writ petitioner to the effect that on hearing about the seizure of the lorry on 9-9-1959 he went to the Police Station where he found the Sales-tax Officer, and attempted to satisfy the latter by producing the various documents in respect of the goods, nevertheless the officer declined to accept these bills and be convinced about either the ownership of the goods or the non-liability of the goods for payment of sales-tax. That statement has not been contradicted so far as I could see in the counter-affidavit filed by the Assistant Secretary [Law] Agricultural Income-tax and Sales-tax. This allegation is contained in Para.4 & 5 of the affidavit. That statement has not been contradicted so far as I could see in the counter-affidavit filed by the Assistant Secretary [Law] Agricultural Income-tax and Sales-tax. This allegation is contained in Para.4 & 5 of the affidavit. So far as these paragraphs are concerned the Department says that after the seizure the vehicle was taken to the Police Station along with the goods and later on Shri Assanar Pillai offered to pay the compounding fee as well as the penalty and the goods were released from custody on receiving the amount from Assanar Pillai. No doubt, the learned Government Pleader has urged that the Revenue has given a different version regarding the matters mentioned in Para.4 & 5 and the affidavit should be taken to mean that they have impliedly controverted the statements made by the petitioner. I am not inclined to accept this contention. Especially when a very categorical affirmation of fact as against the Sales-tax Officer has been made and this statement has not been controverted, one must proceed on the basis that the petitioner did attempt, if possible, to satisfy the officer by producing the documents in his possession regarding the ownership of the goods and also non-liability of the goods for sales-tax and that the officer has not cared to conduct the investigation as he is bound to do under S.16A & R.28A & 28B of the General Sales-tax Rules. 21. This Court has repeatedly pointed out that the provisions of S.16A and R.28A 28B must be scrupulously followed by the authorities concerned both before levying penalty and before taking action by way of confiscation of the goods and it is regrettable to find that notwithstanding this proposition laid down by this Court the Department does not seem to have regard either to the mandatory provisions contained in the Statute or the Rules. 22. 22. It is worthwhile to draw the attention of the respondent to the provisions, in particular, of Sub R.3 of R.28A which makes it obligatory on him before ordering confiscation of the goods to give the owner of goods if he is present in the vehicle an opportunity of being heard and if he is not present there is a further obligation on the part of the officer to make enquiries as he deems fit and ascertain the name and address of such person and if the name and address are ascertainable there is a further obligation on the part of the officer to give him an opportunity of being heard. These are very salutary provisions made by the legislature in order to safeguard the rights of the real person who is interested in the goods, namely, the owner of the goods and this procedure indicated either in the Act or Rules cannot be considered to be an empty formality which can be ignored by the Department. 23. In the result, the orders under attack are set aside and the orders levying penalty are also set aside. There will be a direction for refund of the penalty and compounding tax collected from the petitioner through Shri Assanar Pillai who is the person, according to the department, who has paid the tax. Allowed.