JUDGMENT RAJESH BALIA, J. - This revision, under section 15 of the Rajasthan Sales Tax Act, is against the order dated May 30, 1991, passed by the Rajasthan Sales Tax Tribunal, in Appeal No. 6/89/ST/Jodhpur. Briefly stated, the facts giving rise to present revision are that - on August 18, 1988. Truck No. RNM 369 carried five aluminium coils, purchased by the petitioner from M/s. Prem Cables Pvt. Ltd., Pipaliyan Kalan. The transporter carried the requisite documents as required under section 22A of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as "the Act"), only in respect of four coils and the fifth coil, weighing 2,912 kg. was not accompanied by any document. At the check-post, on finding one coil of aluminium unaccompanied by document, the Assistant Sales Tax Officer, Ward III, Circle C, Jodhpur, seized the coil and issued a notice to the petitioner to appear on September 3, 1988, and show cause against levy of penalty on the value of the coil, estimated to be Rs 81,000, weighing 2,912 kg. at the rate of 30 per cent maximum permissible levy of penalty under section 22A(7) of the Act. The petitioner moved an application that the aluminium coil is urgently required for the purpose of manufacture of conductors which are to be supplied to Punjab Electricity Board and delay in getting the coil might result in severe loss. He, therefore, offered to make payment of tax and whatever penalty that may be leviable on the spot. On such application, the Assistant Commercial Tax Officer (for short, hereinafter, "the A.C.T.O.") levied the penalty at the maximum amount of Rs. 24,300 and released the goods on that very day. The petitioner, thereafter, preferred an appeal before the Deputy Commissioner, Commercial Taxes (Appeals), on August 30, 1988. Accompanied with appeal, he produced a covering letter from the seller of the goods, dated August 18, 1988 along with the gate pass, dated August 17, 1988, for removal of excisable goods and the delivery invoice dated August 18, 1988; and the transport receipt dated August 18, 1988, all of them pertaining to the goods in question. Accompanied with appeal, he produced a covering letter from the seller of the goods, dated August 18, 1988 along with the gate pass, dated August 17, 1988, for removal of excisable goods and the delivery invoice dated August 18, 1988; and the transport receipt dated August 18, 1988, all of them pertaining to the goods in question. It was urged by the authorised representative of the petitioner that as is apparent from the communication of the seller dated August 18, 1988, the fifth coil was loaded in the truck at the nick of time and the papers relating to it were left behind by the transporter to be carried along with it. The petitioner was in no way at fault for the goods being carried without accompanying requisite documents. In the circumstances, the breach of law was mere technical breach and not intended to evade or avoid the payment of tax. Such venial or technical breach of law ought not to attract penalty. The Deputy Commissioner (Appeals) rejected the appeal, and affirmed the order passed by the ACTO. On further appeal, the Rajasthan Sales Tax Tribunal also affirmed the findings of the Deputy Commissioner (Appeals) but reduced the penalty from Rs. 24,300 to Rs. 18,000, by treating the offence as first offence of the petitioner. Learned counsel for the petitioner urged that the Deputy Commissioner (Appeals) and the Tribunal have based their decision merely on surmises and conjectures, without making any inquiry about the genuineness of the documents produced before the Deputy Commissioner of Appeals. Learned counsel contended that law is well-settled in the matter of penalty for breach of any statutory conditions, like the present one, the penalty ought not to be levied in the absence of finding as to contumacious or wilful default merely because it is lawful to do so. In the present case, there is no material to show any wilful or contumacious default on the part of the petitioner. On the other hand, learned counsel for the Revenue strenuously defended the levy of penalty by contending that it is admitted fact that one coil as aforesaid was being transported without requisite documents. Section 22A has been enacted to prevent evasion of tax and any breach of provisions of section 22A, must be viewed from the point of view as an attempt to evade the tax and be seriously dealt with. Section 22A has been enacted to prevent evasion of tax and any breach of provisions of section 22A, must be viewed from the point of view as an attempt to evade the tax and be seriously dealt with. Breach of provisions of section 22A is admitted. No documents were produced before the assessing authorities by not availing the opportunity given to the petitioner. Both the appellate authority have affirmed the levy of penalty, though the Tribunal has reduced the quantum. In these circumstances, the counsel contends, that no question of law arises in the present case. Hence revision ought not to be entertained. He also contended the application of the petitioner for taking delivery of goods by offering to make payment of tax and penalty must be deemed to be an admission of guilt by the petitioner and surrendering to penalty by volition. He is, therefore, estopped from challenging the order. There cannot be any doubt that section 22A is on statute book, as a preventive measure to tax evasion and avoidance through fictitious or unaccounted transporting of goods. But it is equally true that provision are of ancillary nature, providing the manner and mode of transporting goods. The fact that on occasion, the goods are transported unaccompanied with documents, does not mean that in all such cases, penalty has to be levied, or if it is to be levied, maximum penalty has to be levied. It is to be noticed that provision casts an obligation only to the extent of carrying of requisite documents along with the goods by the carrier. If the required documents are accompanied, no breach is committed except in case documents are found to be fictitious or forged. If the goods are carried unaccompanied with the documents requisite, the breach of the condition for carrying goods is complete. Can it be said that in later case, levy of penalty is not only lawful but in all circumstances, obligatory ? If so, can it further be said that the assessing authority has uninhibited discretion to levy the maximum or near maximum penalty. In my opinion, the answer to both is in negative. It will be apposite to reproduce relevant extract of section 22A of the Act : "22A. Establishment of check-post or barrier and inspection of goods while in transit. - .................... In my opinion, the answer to both is in negative. It will be apposite to reproduce relevant extract of section 22A of the Act : "22A. Establishment of check-post or barrier and inspection of goods while in transit. - .................... (7)(a) The officer-in-charge of the check-post or barrier or any other officer not below the rank of an Assistant Commercial Taxes Officer, empowered in this behalf may, after giving the owner or person in-charge of the goods a reasonable opportunity of being heard and after holding such further enquiry as he may deem fit, impose on him for possession of goods not covered by goods vehicle record, and other documents prescribed under sub-section (3) or for submission of false declaration or documents a penalty not exceeding 30 per cent of the value of such goods, as may be determined by such officer : Provided that where the goods are being carried without proper documents as required by sub-section (3) or with any false declaration or statements and the owner or the incharge or the driver of the vehicle, boat or animal carrying such goods is found in collusion for such carrying goods, the vehicle, boat or animal shall also be seized by the officer empowered under sub-section (7), and such officer, after affording an opportunity of being heard to such owner, incharge or driver may impose a penalty not exceeding 30 per cent of the value of the goods carried and shall release the vehicle, boat or animal on the payment of the said penalty or on furnishing such security in such form as prescribed under clause (b) of sub-section (7) : Provided further that when an owner, incharge or driver of a vehicle, boat or animal is found guilty second time of the offence mentioned in the preceding proviso, he shall be liable to a maximum penalty as mentioned in the preceding proviso and the vehicle, boat or animal carrying the goods may be kept seized and detained for a period not exceeding 30 days after the date of the payment of the penalty or furnishing of the security. (b) Such officer may release any of the goods seized under sub-section (5) or sub-section (6) on payment of the penalty under clause (a) or on furnishing such security in such form as may be prescribed for the payment thereof, as he may consider necessary." Law does not provide that once goods in transit are found to be unaccompanied by the requisite documents, the levy of penalty is automatic. If that were so, the provision for issuing a show cause notice to the owner or transporter will be meaningless. Notices are issued to the person likely to be affected by the order, only with a view to give him an opportunity against the proposed penalty. Such opportunity must necessarily include opportunity to show that no penalty is leviable. It is to be noticed that the provisions of section 22A are operative only until goods are in transit unaccompanied with requisite documents. It has no operation/application where transit of goods have come to an end by delivery of goods to consignee. Thus, in all cases, the question of levy of penalty will arise before the goods are delivered to consignee and it is found, while the goods are in transit, with the transporter, that they are unaccompanied with documents. On the face of it, in such cases, if that is sufficient to levy penalty, no meaning can be attached to giving an opportunity to owner of the goods or transporter to show cause against levy of penalty inasmuch as in all such cases, the fact of breach is established as soon as goods are found unaccompanied by documents. If that were the intention to levy penalty in such cases, there being no possible defence available to other side, statute could have provided levy straightaway. That is not the case. In my opinion, when the law requires giving of an opportunity to a person against the proposed levy of penalty, it is not mere empty formality to make an order, as a matter of course, as foregone conclusion but it implies that person against whom the action is proposed has a fair opportunity to show that no penalty can be levied in the facts and circumstances of the case. As I have noticed above, in a case where notice for penalty for breach of condition of section 22A, namely, carrying of goods by the transporter, unaccompanied by requisite documents; the case of breach is already a foregone conclusion, inasmuch as, it is only when on checking of vehicle, it is found that the goods are not accompanied by documents that the notice is issued. The finding that the goods were unaccompanied with the requisite documents, is a accomplished fact and if penalty was to be levied only on that account, then the provisions of section 22A(7) requiring an opportunity to be given to the owner or the person in whose incharge the goods were and enjoining a duty on the authority to hold an enquiry as it deems fit, would be a meaningless formality, resulting in nothing. That obviously cannot be intention of the provision. It is also to be noticed that the penalty provided is not merely for a technical breach but is substantially heavy which can extend to 30 per cent of the value of goods, much heavier than the tax itself that could be evaded or avoided. The provision also provides for seizure of goods and penalty in case documents are found to be forged or not genuine. These provisions are indicative of the fact that the penalty is to be levied where the breach committed or the default for which penalty is levied, is related and has a rational nexus with the purpose for which the provisions of section 22A have been enacted, namely, that the breach must be related to evasion or avoidance of tax. If that be so, in my opinion, mens rea or deliberate defiance of the provision with intention to evade or avoid liability of tax that may arise as a result of the transaction, which was sought to be shielded by keeping it out of accounts, must be necessary ingredient before penalty could be levied. It may further be noticed that where goods are found in transit unaccompanied with requisite documents, when the vehicle is checked, the breach is complete. In defence, the person concerned can produce the relevant documents only after the event regarding which breach has been committed and not earlier. It may further be noticed that where goods are found in transit unaccompanied with requisite documents, when the vehicle is checked, the breach is complete. In defence, the person concerned can produce the relevant documents only after the event regarding which breach has been committed and not earlier. Therefore, the mere fact that the goods were not accompanied by documents and were produced later on, during the proceedings by itself does not lead to any conclusion that such documents have been prepared later on by ante-dating the same. That finding must depend upon an inquiry into the facts and not merely on the presumption, solely on the basis that documents were not accompanying the goods when the same was checked. That would be the case, in every case of breach of provisions of section 22A. Even assuming the alternative, that wherever a breach is found, to have been committed, of the provisions of section 22A, penalty has to be levied and it is lawful for the authority to levy penalty and, the question germane in the enquiry is the quantum of penalty to be imposed, inasmuch as, the law provides only the maximum limit up to which penalty can be imposed and leaves actual quantum of penalty to be levied on the discretion of the authority concerned. Assuming that to be so, even in that event, the guidelines inhibiting the discretion of authority under the provisions is, the purpose for which the provisions have been enacted and the relation of the breach to the purpose, can furnish the criteria for varying the quantum. Obviously, in such circumstances, where the alleged breach is mere technical, not infested with any wanton default committed with a view to evade or avoid tax by concealing the transaction, only a token penalty would be justified for technical breach. On the other hand, if it is found that the breach is deliberate, with a view to evade or avoid tax, the quantum of penalty have to be substantial within the maximum limit provided, depending upon the other attending facts and circumstances, which may vary from case to case. On the other hand, if it is found that the breach is deliberate, with a view to evade or avoid tax, the quantum of penalty have to be substantial within the maximum limit provided, depending upon the other attending facts and circumstances, which may vary from case to case. Thus, even in that event, an enquiry into the mens rea on the part of the defaulter by the authority become relevant, if the opportunity of hearing provided under section 22A(7) and the obligation to hold an enquiry has to have any meaning with the purpose sought to be achieved by the said provision. In this connection, it would be relevant to recall what their Lordships of the Supreme Court observed in Hindustan Steel Ltd. v. State of Orissa [1970] 25 STC 211 : "..........penalty may be imposed for failure to register as a dealer. But the liability to pay penalty does not arise merely upon proof of default in registering as a dealer. An order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute." It will also be relevant to refer to decision in Sodhi Transport Co. v. State of U.P. [1986] 62 STC 381 (SC); AIR 1986 SC 1099 , wherein their Lordships while considering the constitutional validity of the provisions of section 28B of the U.P. Sales Tax Act, which are of similar nature as section 22A of the Rajasthan Sales Tax Act, observed that these provisions are introduced to check evasion and to provide a machinery for levying tax from the persons who dispose of goods within the State and avoid tax which they are otherwise liable to pay. That was a case relating to a presumption, which was envisaged under the U.P. Sales Tax Act, in the case of goods unaccompanied by requisite documents, about sale of such goods having been taken place within the State so as to attract the tax liability of the State. The Rajasthan Act does not raise such presumption of sale within the State, to envisage levy of penalty for such breach in order to deter evasion or avoidance of payment of tax which has already become due or which may become due as a result of such transfer of goods. But the purpose of the provision was found to have rational nexus with the objective of keeping a check on the tax evasion by providing carrying of requisite documents containing relevant information including identity of consignor and consignee along with the goods. The same view was expressed by this Court in Gill Sandhu Haryana Transport Co. v. State of Rajasthan (1986) RLR 49 affirmed in D. B. Special Appeal No. 251/85 - Gill Sandhu Haryana Transport Co. v. State of Rajasthan decided on January 16, 1986 (1988) 25 STL 26)]. Keeping the above principle in mind, the present case may be examined. It is apparent from the orders passed by the authorities below that no such enquiry into the genuineness of the documents, produced by the petitioner along with the memo of appeal, was conducted nor any enquiry about existence of mens rea to commit breach with the purpose of tax evasion was kept in mind before levy of penalty by the assessing authority or thereafter, by affirming the levy of penalty by the Deputy Commissioner (Appeals) to the maximum limit and, thereafter, by the Tribunal; affirming the levy of penalty to a very substantial amount. It is to be kept in mind that the transit of goods commences with seller of goods, delivering the goods to the transporter or the carrier. The bills, invoice, excise gate pass, are all prepared and delivered to the transporter or carrier by the seller. The transport receipts for carrying the goods is prepared by the transporter and is carried with him. Therefore, the delivery of documents to the transporter and carriage of documents along with the goods, so transported during transit, does not involve any overt act on the part of the consignee. At the destination, if the goods are found while in transit, unaccompanied by the documents, ordinarily, any explanation by the recipient or consignee can be given only after he gets the same from the seller or the transporter. In fact, real explanation for non-accompanying of documents requisite with the goods in transit, can only emanate from the seller or the carrier and the purchaser has to depend on explanation furnished by such persons. In the present case, this is what the petitioner who was a consignee of the goods has done. On August 18, 1988, when the goods were seized while in transit, with the carrier one coil of aluminium was found unaccompanied with any relevant document. He could offer any explanation only after getting to know from the vendor or the transporter as to why one part of the consignment was not accompanied by requisite documents. The fact that because of some pressing necessity he immediately offered to make payment of tax and penalty leviable in law, and get the goods released; does not militate against the explanation which he could offer only after receiving the same from the vendor. It is to be noticed that section 22A(7) itself provide for release of any goods seized on payment of penalty under clause (a) or on furnishing such security for such penalty, as may be prescribed, for the payment thereof. This clearly envisages that even by furnishing security, for the proposed sum of penalty, to be levied disclosed in the notice or at best the maximum leviable penalty; a person could get the goods released if he is in necessity of the immediate release of the goods and furnish the explanation in due course. This clearly envisages that even by furnishing security, for the proposed sum of penalty, to be levied disclosed in the notice or at best the maximum leviable penalty; a person could get the goods released if he is in necessity of the immediate release of the goods and furnish the explanation in due course. Therefore, the mere fact that the consignee immediately offered to make payment of penalty, which the authority could under law, impose, in order to secure release of goods, does not amount to admission of the fact that the goods were being transported without accompanying of documents for the purpose of evasion or avoidance of tax. In the present case, the petitioner immediately on coming to know of the seizure of goods, made a request to release the goods on charging tax or penalty that may leviable under law and release the goods, as he was in the pressing need of the same, and, if on the request, by securing payment for the maximum penalty from the consignee, the assessing authority has released the goods, it does no militate against the assessee to offer an explanation which furnishes a defence to him against the levy of penalty and get the order of penalty set aside in due proceedings. Since in the present case, the assessing authority has passed the order of penalty, the offering of explanation and submission of documents could have been made only in appeal before the appellate authority. That the assessee has done. However, no enquiry was directed to the seller, at whose end the document furnished along with the appeal emanated. In this connection, it is further to be noticed that while law requires disclosure of name of consignor and consignee both, in respect of goods in transit, for the purpose of levy of penalty; the person designated, are "the owner" or "the person in-charge of the goods". Distinction has to be made between "owner" of the goods on the one hand and "consignee" or "consignor" on the other hand. There can be only one person who can be "owner". Who is the owner of the goods in transit, depends upon the fact whether property in goods have passed to "consignee" of not ? This is a question of fact, to be established in an enquiry into relevant terms of sale agreement or transaction. There is no presumption about "ownership" of goods transit. Who is the owner of the goods in transit, depends upon the fact whether property in goods have passed to "consignee" of not ? This is a question of fact, to be established in an enquiry into relevant terms of sale agreement or transaction. There is no presumption about "ownership" of goods transit. Therefore, before levy of penalty, this enquiry also becomes relevant, as to who is "owner" of the goods ? Obviously, the person in-charge of the goods while in transit would be the carrier or the person accompanying the goods on behalf of the "owner". But necessarily the consignee does not become the owner of the goods merely on the basis of consignment being in his favour. He becomes the owner on the basis of terms of the contract. His ownership depends upon point of time and place where the property in goods pass on to him. If the property in goods passes on to the consignee on delivery of the goods at destination; the consignee does not become owner of the goods until delivery of the goods to him. On the other hand, if the property in goods passes to the consignee at the seller's end or the goods are delivered to the transporter, as agent of the consignee, he becomes the owner of the goods and liability may arise under section 22A(7) against him. But without determining this question, in my opinion, penalty cannot be ipso facto levied on the consignee on the plain reading of the provisions of section 22A(7). This enquiry is also relevant for the purpose of deciding the question of mens rea which, as discussed above, is the relevant fact to the determined before levy of penalty in whichever way the provisions of section 22A(7) relating to levy of penalty is construed. The authorities have, in my opinion, erred in levying penalty by ignoring the relevant consideration before levy of penalty in the present case, as I have discussed above; and have levied the penalty as if levy of penalty was automatic merely by establishing that the goods were unaccompanied by relevant documents. It may also be noticed in this connection that any order imposing penalty for failure to carry out a statutory obligation is quasi-criminal in nature. The statute has not provided any presumption about the existence of mens rea against the defaulter. It may also be noticed in this connection that any order imposing penalty for failure to carry out a statutory obligation is quasi-criminal in nature. The statute has not provided any presumption about the existence of mens rea against the defaulter. Therefore, as a prosecutor, burden of proving is primarily on the Revenue. The Revenue has failed to discharge its burden, inasmuch as, it has merely raised a presumption of such deliberate breach of account of furnishing of documents not at the time when goods were seized but later on; which, as I have discussed above, was wholly unwarranted. Adopting this course, would result in raising presumption in favour of Revenue for the purpose of levy of penalty in all cases where no such presumption is provided to be raise under the statute. Thus, viewed from any angle, in my opinion, the levy of penalty in the present case, is not sustainable. Consequently, the orders of the Sales Tax Tribunal as well as the Deputy Commissioner (Appeals) and the A.C.T.O., are quashed and revision is allowed. There will be no order as to costs of this revision. Revision allowed.