JUDGMENT K. K. USHA – Assessee is the revision petitioner. The matter arises in penalty proceedings under section 29A of the Kerala General Sales Tax Act, 1963. Relevant assessment year is 1985-86. On March 13, 1986, the assessee, the transporting 12,000 Kgs. of rubber in a lorry. On verification of the records, the Sales Tax Inspector attached to the sales tax check-post at Perumannoor (Ernakulam) found certain irregularities. Pursuant thereto, an enquiry was conducted and annexure A order was passed holding that the assessee attempted to evade payment of tax due under the Kerala General Sales Tax Act. An account of Rs. 24,696 was imposed as penalty on the revision petitioner under section 29A(4) of the Kerala General Sales Tax Act, 1963. Appeal filed by the assessee was dismissed by the Appellate Assistant Commissioner, Income-tax and Sales Tax under annexure B. On second appeal, Tribunal reduced the quantum of penalty by one-half of the amount imposed by the enquiry officer. 2. It is contended by the assessee-revision petitioner that the Tribunal has committed an error in sustaining imposition of penalty after finding that the goods transported by the assessee was raw rubber which is taxable at the last purchase point within the State and assessee has subsequently produced from 25 declaration to prove that he was not the last purchaser in respect of that consignment. Reliance was placed by learned counsel for the revision petitioner on a Bench decision of this court in K. G. Thommen v. State of Kerala (1994) KLJ (TC) 477. In the above decision, this Court has held as follows : "Two things are fairly clear on a reading of section 29A(2) and section 29A(4) of the Act. They are : (1) the transport of the goods should be without proper and genuine documents and (2) of the officer should be satisfied that the person transporting the goods is attempting to evade payment of tax due under the Act. We are of the view that mere transport of the goods without proper documents may enable the officer to check and detain the goods. It is open to the officer to make enquiries. But, in order to levy a penalty under section 29A(4) of the Act, the officer should positively find that there has been an attempt to evade tax due under the Act. It is open to the officer to make enquiries. But, in order to levy a penalty under section 29A(4) of the Act, the officer should positively find that there has been an attempt to evade tax due under the Act. The mere fact that the transport of goods was not accompanied by proper documents by itself will not be sufficient to attract levy of penalty under section 29(A) of the Act. It is essential that the officer should find that there has been an attempt to evade tax due under the Act and that should be based on proper material." 3. It is true that there is a finding in annexure A as well as annexure B that there was an attempt to evade tax under the Kerala General Tax Act on the part of the assessee. In paragraph 4 of its order, Tribunal has held that the enquiry officer was justified in arriving at a finding that there was an attempt to evade payment of tax and therefore the provisions of section 29A(4) are attracted in this case. But, at the same time, in paragraph 6, Tribunal has observed as follows : "The goods transported by the appellant is raw rubber, which is taxable, at the last purchase point within the State. As far as this transport is concerned the appellant has subsequently produced from 25 declaration to prove that he was no the last purchaser in respect of that consignment." After making the above observation, Tribunal reduced the quantum of penalty. 4. Revision petitioner is justified in contending that when the assessee had produced form 25 declaration to prove that he was not the last purchaser in respect of the rubber transported by him, Tribunal should have taken the view that the assessee was not liable to any tax under the Kerala General Sales Tax Act and therefore there was no question of his attempting to evade payment of Tax in respect of the above consignment. By applying the dictum laid down by this Court in the decision referred above, the authorities could not have imposed penalty, if, on facts, there was no liability for the assessee to pay tax under the Kerala General Sales Tax Act in respect of the consignment concerned. By applying the dictum laid down by this Court in the decision referred above, the authorities could not have imposed penalty, if, on facts, there was no liability for the assessee to pay tax under the Kerala General Sales Tax Act in respect of the consignment concerned. From the order of the Tribunal, if it not clear as to whether declaration in form 25 was produced by the assessee before the first authority. we are of the view that this is a matter to be examined by the Sales Tax Officer (Enquiry) afresh. We, therefore, set aside the orders passed by the three authorities and direct the Sales Tax Officer (Enquiry) to consider the matter afresh in the light of the dictum laid down by this Court in K. G. Thommen v. State of Kerala (1994) KLJ (TC) 477. It will be open to the assessee to bring to the notice of the enquiry officer the declaration in form 25 in respect of the consignment concerned, if the declaration was not already produced before the first authority, but was produced only before the Tribunal. If the declaration is thus brought before the enquiry officer, he will take into consideration the same also, while passing final orders in this matter. Final orders will be passed by the enquiry officer within three months. The revision petition stands partly allowed as above. The bank guarantee furnished by the assessee will continue till final orders are passed by the enquiry officer. Order on C.M.P. No. 3089 of 1996 in T.R.C. No. 92 of 1996 dismissed. Petition partly allowed.