JUDGMENT 1. - We have heard the learned counsel for the parties. 2. The appeal is directed against the order passed by the learned Single Judge in writ petition No. 3325/2002 filed by the respondent-Tajiander Pal. 3. The petitioner-respondent is the owner of the goods which were being transported by the Terry Transport Company from Doomanwali near Punjab to its destination in Rajasthan to its purchaser. The goods were carried in PB-13H-9698 which was driven by one Sukhvinder Singh. 4. The vehicle was stopped in Rajasthan at Ratanpura road by the respondents and the Driver on demand, produced all the relevant documents required to accompany the goods in transit under Section 78 of the Rajasthan Sales Tax Act (hereinafter called the Act). This happened on 2nd August, 2002. The driver of the vehicle Sukhvinder Singh was issued show cause notice for alleged violation of Section 78 of the Act. 5. The Driver was required to show cause as under : " vkt fnukad 2-8-2002 dks okgu la[;k ih0,p0 13 ,p 9698 dks ckeuokyh yw.kdj.klj ekxZ ij tkWap djus ij eky ls lEcfU/kr nLrkostksa ij jktLFkku dh fdlh Hkh izos'k tkWap pkSdh ij ntZ ugha fd;k x;k gS blls ;g izrhr gksrk gS fd mDr eky dks dj oapuk dh ea'kk ls ifjogfur fd;k tk jgk gS vr% bldk dkj.k crkvksa fd mDr d`R; ij vki ij jktLFkku fodz; dj vf/kfu;e] 1994 dh /kkjk 78 ds rgr 'kkfLr D;ksa ugha vkjksfir dh tk,\ " 6. A detailed reply thereto was made on behalf of the Driver stating that goods are being carried with proper documents and all the documents required during transit are available and have been found in order as such the issue of show cause notice for imposing penalty was not justified. It was also submitted that the allegation made in the show cause notice is not justified. It was also submitted that the allegation made in the show cause notice is that no entries have been made at checkpost but provisions of Section 78 nowhere provides that entries of goods have to be made at checkpost and non entry of document would form the basis for imposition of penalty under the provisions of Section 78(2). It was also submitted that the allegation made in the show cause notice is that no entries have been made at checkpost but provisions of Section 78 nowhere provides that entries of goods have to be made at checkpost and non entry of document would form the basis for imposition of penalty under the provisions of Section 78(2). There cannot be any penalty unless breach of Section 78(2) is committed with intention to avoid or evade the tax and it is not a case of tax evasion at all, therefore, no penalty is leviable. 7. On 27.8.2002, the Assistant Commissioner Taxes Officer passed an order imposing penalty of Rs. 1,67,322 equal to 50% of the value of the goods carried in the vehicle by treating it to be a violation of Section 78(10-A) of the Act. 8. In these proceedings, alongwith the vehicle, goods have also been detained. Because of this impasse, the owner of the goods-the petitioner made an application to the concerned officer that he may be allowed to unload the goods,stating that there is no evidence against the owner of the goods and the truck is lying with the Sales Tax Authorities for initiating the proceedings against the driver against whom the penalty order has been made. Having not received any response; as the respondents were insisting for payment of penalty before the goods can be released; the respondent filed the writ petition before this Court. The learned counsel for the petitioner submitted that there was no mens rea and the goods have been found duly accompanied with the requisite documents and was, not a case of tax evasion. 9. The said writ petition disposed of by reducing penalty from 50% to 5% considering the penalty equal to 50% of the value of the goods to be too excessive, accepting the plea that there was no default of Section 78(2). 10. Aggrieved with the aforesaid order, this appeal by Revenue is before us. It is the contention of the Revenue that penalty under Section 78(10-A) of the Act was 50% of the prescribed penalty is equal to 50% of the value of the goods. There was no room for reducing the penalty from 50% to 5%. The plea of availability of alternative remedy to the petitioner was also raised before the learned Single Judge. There was no room for reducing the penalty from 50% to 5%. The plea of availability of alternative remedy to the petitioner was also raised before the learned Single Judge. However, the learned Single Judge did not find it a fit case to non-suit the petitioner on the ground of availability of alternative remedy only. 11. In respect of the contention that the penalty could not be reduced from 50% to 5%, the learned counsel relies on the decision of the Supreme Court in State of Rajasthan v. D.P. Metals, 2001(124) STC 611 and a Bench decision of this Court in Lalji Molji Transport Co. v. State of Raj. 2001(127) STC 365 . 12. The learned counsel for the respondent urged that sub-section (10-A) of the Act was not on the Statute Book when these two decisions referred to hereinabove were rendered, therefore, in interpreting sub-section (10-A), the said decisions cannot be pressed into service. It was also contended by learned counsel for the respondent that sub-section (10-A) inserted in the Act w.e.f. 4.5.2002 is ultra vires as it provides more stringent penalty than sub-section (8) notwithstanding, there is no violation of a substantive provisions of transporting the goods accompanied with requisite documents under sub-section (2) of Section 78. 13. It was also contended by the learned counsel for the respondents that the proceedings under sub-section 10-A of Section 78 were not at all envisaged to be taken against the owners of the goods and the goods, therefore, the detention of goods for the alleged violation of sub-section (10-A), operation of which is confined to the act of transporter in not stopping the vehicle at checkpost or in not taking the vehicle to checkpost, the appellants' insistence on not releasing the goods to the owners of the goods without payment of penalty is not authorised by law and there being no order against the owner or against the goods, the petitioner had no remedy of appeal challenging the order of penalty directly on merit. It was pointed out by learned counsel for the respondent that in the show cause notice or the order, the necessary ingredients of sub-section 10-A were not at all spelt out to sustain the penalty. It was pointed out by learned counsel for the respondent that in the show cause notice or the order, the necessary ingredients of sub-section 10-A were not at all spelt out to sustain the penalty. The necessary conditions on the existence of which alone penalty under sub-section (10-A) of Section 78 could be levied, learned counsel for the respondent states, are that where the driver or the person incharge of the vehicle or the carrier abstains from bringing or stopping the vehicle or carrier at the nearest checkpost as provided under clause (b) of sub-section (2). In such event, the incharge of the checkpost or the officer empowered under sub-section (3), may detain such vehicle or carrier and, after affording an opportunity of hearing to the owner or a person duly authorised by such owner or driver of the vehicle or the carrier, may impose a penalty equal to 50% of the value of such goods. 14. We find force in this contention. The show cause notice even does not allege that the driver or the person incharge of the vehicle had abstained from bringing or stopping the vehicle or carrier at the nearest checkpost as provided under clause (b) of sub-section (2). That being the case, there being no allegation of violation of sub-section 10-A in the show cause notice, the driver was not called upon to show cause against the violation of sub-section 10-A. No penalty could be levied on such show cause notice under sub-section 10-A of Section 78 at all and even if the penalty were to be levied, it was to be levied only against the owner or a person duly authorised by such owner or the driver or the person incharge of the vehicle. The owner of the goods or the person incharge of the goods, as the case may be upheld under sob-sec. (5) of Section 78, is not subjected to penalty in violation of sub-section (10-A) and, therefore, without there being any violation of provisions of Section 78 qua goods in transit, the penalty cannot reach the goods or the owner of the goods and the same cannot be recovered from the sale of goods which were duly accompanied by the requisite documents. Therefore, the detention of the goods for recovery of the penalty levied against the driver or the owner of the vehicle was without jurisdiction. Therefore, the detention of the goods for recovery of the penalty levied against the driver or the owner of the vehicle was without jurisdiction. Even if under sub-section (10-A) the penalty could be justified, the respondents were not entitled to detain the goods and deprive the owner of the goods from its use at the cost of making payment of penalty for which he is not at all liable under the provisions of the Act. 15. It was also contended by learned counsel for the respondents that distinction between levying of penalty under sub-section (5) and sub-section (8) has been brought about by the Supreme Court in D.P. Metal's case. Whereas penalty under sub-section (5) is envisaged on the person incharge of the goods, the penalty under sub-section (8) is leviable on Driver or the incharge of the vehicle in case of violation of sub-section (2). Consequently, levy of penalty under sub-section (9) were 30% of the value of the goods was held to be not mandatory by pointing out that while the word "shall" imparting mandate has been used under sub-section (5) for necessity of levying penalty in case of violation of sub-section (5), the word used in sub-section (8) is "may" implying it to be an enabling power, which is directory and not mandatory and therefore keeping in view the definition used by the use of enabling word "may", the penalty under sub-section (8) has been held to be discretionary. Likewise, in sub-section (10-A) also word "may" has been used for enabling levy of penalty. Thus, it is not imperative in all cases to levy the penalty where there Is violation of sub-section (10-A). It is only in case where there is nexus of any evasion or avoidance of tax with the breach of sub-section (10-A) that the penalty can be imposed otherwise, it is the discretion left with the assessing authority to levy the penalty but he cannot act mechanically in levy of penalty under sub-section (10-A) as such. 16. It is only in case where there is nexus of any evasion or avoidance of tax with the breach of sub-section (10-A) that the penalty can be imposed otherwise, it is the discretion left with the assessing authority to levy the penalty but he cannot act mechanically in levy of penalty under sub-section (10-A) as such. 16. In the facts and circumstances, it is apparently clear that since the goods of the petitioner-respondent have been detained and are continued to be detained at the pains of recovery of penalty from the owner of the goods by insisting on payment of penalty before the goods can be released, the petitioner-respondent has necessary locus standi to challenge the order of imposition of penalty and to raise other grounds to secure the relief claimed by him for release of goods. 17. From the reproduction of show cause notice hereinabove, it is apparent that no notice of breach of sub-section 10-A of Section 78 was issued to the Driver calling upon his explanation for such breach. Therefore, the reply to the show cause notice also dwells on the question of non violation of sub-section (2) of Section 78 leading to initiation of penalty proceedings under sub-section (5) and (8) of Section 78. The specific ingredients of breach of requirements contemplated under sub-section (10-A), which is newly inserted provision, appears to be not stoppage of the vehicle at the checkpost or not carrying the vehicle to the nearest checkpost. The penalty imposable under sub-section (10-A) as in sub-section (8) of Section 78 has been left with the discretion of the assessing officer by using the word "may" which is enabling provision and Is not a direction as is under sub-section (5) of Section 78 while upholding the validity of sub-section (8), the Court in D.P. Metals (supra), stated as under : "The scheme of Section 78 shows that levy of penalty under sub-section (5) and (8) are of different persons. While under sub-section (5) penalty is on the person incharge of the gcods evading tax, the penalty under sub-section (8) is on the driver or the transporter, in case of violation of sub-section (2). Further, levy of penalty under sub-section (8) upto 30% of the value of the goods is not mandatory, as unlike the words "shall" used in sub-section (5), the word used in sub-section (8), is "may". Further, levy of penalty under sub-section (8) upto 30% of the value of the goods is not mandatory, as unlike the words "shall" used in sub-section (5), the word used in sub-section (8), is "may". Thus, under sub-section (8), there is discretion vested with the assessing authority in the matter of levy of penalty." 18. This distinction is also maintained in sub-section (10-A) which confines levy of penalty to the owner of the vehicle or the driver of the vehicle or the authorised agent of the owner of the vehicle. Where breach of sub-section 10-A has taken place and the penalty leviable has also been made discretionary by using word "may" as in sub-section (8). The core of the provision of Section 78 Is interwoven with the rule to prevent or check avoidance or evasion of tax, therefore, where no ground of evasion or avoidance of tax can be made out with the alleged breach of provisions of Section 78, the imposition of penalty cannot be sustained. In the present case also, it is finding that all requisite documents were present when the officer authorised under sub-section (3) required the person carrying such goods to produce such documents and the vehicle was stopped when required to do so. In fact, no violation of sub-section (5) of sub-section (8) have been found by the assessing authorities also. In that view of the matte.; the learned Single Judge was right in coming to the conclusion that no intention to avoid tax can be spelt out from the proceedings of the cases. As we have found earlier that no notice to show cause against the breach of sub-section 10-A has been issued nor any ingredient of sub-section 10-A can be spelt out from the show cause notice for sustaining the penalty after affording an opportunity of hearing. In that respect, therefore, the penalty apparently was not sustainable on the plain reading of provisions of sub-section 10-A coupled with the show cause notice which was given to the Driver of the vehicle to show cause why the penalty could be imposed. 19. In that respect, therefore, the penalty apparently was not sustainable on the plain reading of provisions of sub-section 10-A coupled with the show cause notice which was given to the Driver of the vehicle to show cause why the penalty could be imposed. 19. In view thereof, we are of the opinion that to the extent, the learned Single Judge found that admittedly, the Driver was carrying all necessary papers, invoices and no tax was due makes out a case that the vehicle was carrying the goods alongwith requisite documents without intention to avoid or evade tax. That being so, the discretion vested in the assessing authority was not liable to be exercised even if there was technical violation of sub-section 10-A to Impose the penalty equal to 50% of the value of the goods, though as noticed by us no case of violation of sub-section (10-A) was spelt out in notice under Section 78. Thus, penalty came to be imposed without affording opportunity to the driver to defend himself. The levy of penalty thus being in breach of requirements of sub-section (10-A) and in breach of principles of natural justice, could not have been sustained. 20. So far as the question of reducing the penalty from 50% to 5% is concerned, we are of the opinion that in this case no penalty was leviable and since the petitioner has not appealed against that part of the order nor filed any cross-objection, we refrain from interfering with that. However, we do not find any justification for restoring the penalty equal to 50% of the value of the goods. In the facts and circumstances of the case the goods in question be released to the respondent-petitioner. 21. So far as other contentions noticed by us are concerned are not required to be gone into in this case in view of our aforesaid conclusion.Accordingly, the appeal fails and is hereby dismissed. There shall be no order as to costs.Appeal Dismissed. *******