JUDGMENT S. SANKARASUBBAN, J. Petitioner is a dealer in rubber. He is registered on the files of the first respondent ever since the business started in 1983. The second respondent is the Intelligence Inspector, Sales Tax Intelligence Office, Alleppey. On March 5, 1996 at about 23.30 hours, the second respondent detained a lorry carrying 9,000 kgs. of raw rubber despatched by the petitioner from Kottayam to Calcutta. The transport was through M/s. Ajantha Transport Co. (P) Ltd. The goods were accompanied by the essential documents. But, the second respondent detained the goods and issued exhibit P7 notice under section 29A of the Kerala General Sales Tax Act (hereinafter referred to as "the Act"). The grounds for detention are : (1) The date noted in the delivery note is March 1, 1996 and the reason for delay in despatch is not explained. (2) Though the goods were consigned from Kottayam to Calcutta, the vehicle was intercepted at Podiyedi on the way to Kayamkulam and the change of route was not explained. Hence evasion was suspected. 2. On receipt of exhibit P7, petitioner got release of the goods on executing bank guarantee for an amount of Rs. 1,03,216. Subsequently, the petitioner filed objection to the notice. He was also heard by the third respondent. The petitioner thereafter received exhibit P20 - a communication from the Bank of Baroda, Kottayam (the bank guarantee was given on behalf of the petitioner though the Bank of Baroda). In exhibit P20 it was stated that the beneficiaries of the bank guarantee have invoked the guarantee and claimed the guarantee amount as per the communication dated June 15, 1996. It was further stated that as per the terms of the guarantee they were settling the claim for Rs. 1,03,216. Exhibit P21 is the copy of the communication sent by the second respondent to the Manager, Bank of Baroda, wherein he had demanded for the encashment of the bank guarantee. Petitioner submits that the second respondent has not communicated any order imposing penalty and it was without communicating such an order, the bank guarantee has been enforced. Hence the original petition was filed challenging exhibit P7 as well as the encashment of the bank guarantee without communicating the order of penalty. The petitioner also contended that the imposition of penalty was itself without any basis as there was no evasion or attempt to evade tax. 3. Hence the original petition was filed challenging exhibit P7 as well as the encashment of the bank guarantee without communicating the order of penalty. The petitioner also contended that the imposition of penalty was itself without any basis as there was no evasion or attempt to evade tax. 3. A statement has been filed by the third respondent. According to him, after hearing the petitioner, he was of the view that there was an attempt to evade tax and therefore the security ordered has been converted as penalty as per order dated June 15, 1996. This order is fairly a long order. Therefore a delay of few days has taken place for preparing the typed copy of the order and sending in to the assessee. But on June 18, 1996, the bank has bee intimated to release the amount covered by the bank guarantee in view of the order imposing penalty. This was a short letter and therefore it was prepared immediately and sent to the bank. On receipt of the intimation from the third respondent, the bank released the amount and it has been remitted as per demand draft dated June 19, 1996. This has been done also for the reason that as per the convention two weeks prior information should be given for encashing the bank guarantee covering higher amounts. Further the bank guarantee is to expire on July 7, 1996. The third respondent submits that the order imposing penalty and the intimation to the bank have been drafted on the very same day, i.e., on June 15, 1996. Along with the statement, annexure P3, was produced, which is the copy of the order imposing penalty. 4. It is now admitted that the order was served on the petitioner only subsequent to the filing of the original petition. Learned counsel for the petitioner, Dr. K. B. Mohamed Kutty, argued very forcibly against the action of the third respondent. Learned counsel contended that the entire proceedings taken under section 29A of the Act were illegal. The goods were accompanied by all relevant documents and there was no evasion or attempt to evade tax. The delay in the despatch of goods was explained because of the non-availability of the lorry. He cited authorities to show that itself is not a ground to come to the conclusion that there was an attempt for evasion. The goods were accompanied by all relevant documents and there was no evasion or attempt to evade tax. The delay in the despatch of goods was explained because of the non-availability of the lorry. He cited authorities to show that itself is not a ground to come to the conclusion that there was an attempt for evasion. Regarding the change of route by the driver of the lorry, the counsel submitted that it was a mistake on the part of the driver. On this solitary ground, it cannot be inferred that evasion of tax was attempted. He further submitted that the order of penalty can take effect only after it was communicated and hence it was illegal on the part of the third respondent to encash the bank guarantee before the order is communicated. The statement filed by the third respondent never mentioned that the order was communicated to the petitioner before encashing the bank guarantee. Counsel further elaborated his arguments by submitting that the order is liable to be appealed against and the third respondent had fallen into a legal error by his over enthusiasm and this has adversely affected the petitioner. 5. Under the proviso to section 29A(2) of the Act the officer may allow the goods to be transported on the owner of the goods or his representative or the driver or other person in-charge of the vehicle or vessel executing a bond with or without sureties for securing the amount due as security. Thereafter, the officer detaining the goods has to enquire about the question whether there has been attempt to evade tax. Under sub-section (4) of section 29A, after enquiry and after hearing the owner of the goods, the officer shall, by order impose on the owner of the goods a penalty not exceeding twice the amount of tax attempted to be evaded. Under sub-section (6), if the owner of the goods is not paying the penalty imposed, the goods seized shall be liable to be sold for the realisation of the penalty. Rule 35A of the Kerala General Sales Tax Rules deals with the procedure for inspection of goods in transit through notified areas. Under sub-section (6), if the owner of the goods is not paying the penalty imposed, the goods seized shall be liable to be sold for the realisation of the penalty. Rule 35A of the Kerala General Sales Tax Rules deals with the procedure for inspection of goods in transit through notified areas. Sub-rule (6) of rule 35A states as follows : "Where the penalty is not paid as provided in sub-rule (5) within the time specified in sub-section (6), (a) if cash security has been furnished or when the goods seized have been sold under sub-section (10) of section 29A and the amount deposited in Government treasury, the officer authorised under sub-section (3) of section 29A shall adjust the amount towards the penalty imposed and the expenses and incidental charges to be recovered and refund the excess if any; (b) if any other security or a bond has been furnished, the officer shall take steps to realise the amount of penalty imposed from the security or the surety and adjust the same towards the penalty and expenses and incidental charges." 6. A survey of the above provisions would indicate that the amount of penalty can be realised only after demanding the same and giving a time for 30 days for the owner of the goods to pay the same. The provisions also indicate that it is not always necessary to take a bank guarantee before releasing the goods. On the other hand, what the provisions say is that the goods can be released after executing a security bond with or without surety. 7. In this case we find that the order imposing penalty, according to the third respondent was passed on June 15, 1996. Annexure P3 does not show when it was communicated to the petitioner. On the same day, i.e., on June 15, 1996, the third respondent intimates the bank to enforce the bank guarantee and by letter dated June 19, 1996, the bank informs the petitioner that the amount has been paid to the department. The explanation given by the third respondent is that annexure P3 is a long order. Further, he states that the bank guarantee will expire on July 7, 1996 and hence he was forced to encash the bank guarantee. The explanation given is not acceptable. The third respondent is empowered under the Act to impose the penalty. The explanation given by the third respondent is that annexure P3 is a long order. Further, he states that the bank guarantee will expire on July 7, 1996 and hence he was forced to encash the bank guarantee. The explanation given is not acceptable. The third respondent is empowered under the Act to impose the penalty. He cannot ignore the provisions of the Act and the Rules, and realise the amount imposed as penalty. The third respondent forgot for a moment that he is not the final authority on the question of imposition of penalty. The order is an appealable order. The Act gives 30 days time to the owner of the goods to pay the penalty. The owner of the goods is to be informed that a penalty has been imposed. If he had the apprehension that the bank guarantee will expire on July 7, 1996, he should have foreseen it before and got the bank guarantee executed for a longer period of time. When the statute prescribes a particular mode of doing a thing, the authority can only follow the mode prescribed under it. In the above circumstances, I find that the action of the third respondent encashing the bank guarantee before the order of penalty is communicated to the petitioner is highly illegal, and without jurisdiction. I would have straightaway ordered for transfer of the amount to be deposited in the Bank of Baroda, Kottayam. But, on further reflection, I thought that was not the proper course to be done, since the amount is lying with the State Government and the petitioner is given an opportunity to file an appeal. The petitioner has now received P3 order. He can file an appeal before the competent authority within a period of 30 days from today. If such an appeal is filed, the appellate authority will hear and dispose of the same as expeditiously as possible and at any rate within three months from today. If the appellate authority reduces the amount of penalty or orders that no amount of penalty is leviable, the actual amount due to the petitioner will be returned to the petitioner within a period of one month from the date of order failing which that amount will entail interest at the rate of 12 per cent per annum. In the result, I quash exhibit P21. I direct an amount of Rs. In the result, I quash exhibit P21. I direct an amount of Rs. 2,000 (rupees two thousand only) to be paid as costs to the petitioner. The amount will be paid by the respondents within a period of one month from today. Original petition is disposed of as above. Order on C.M.P. No. 17533 of 1996 in O.P. No. 10233 of 1996 dismissed. Petition allowed.