1. This appeal has been preferred by the appellant under section 11-A of the J&K General Sales Tax Act, 1962 (hereinafter referred to as `the Act' in short) against the order dated 18-07-2007 passed by the Commissioner, Commercial Taxes, J&K whereby the appeal filed by the appellant under section 11 of the Act against the order passed by the Dy. Sales Tax Commissioner, Sales Tax Checkpost, Lakhanpur (hereinafter referred to as 'the Deputy Commissioner' in short) under section 15-A(4), 15-A(8) & 15-A(9) of the Act read with section 9(2) of Central Sales Tax Act, 1956, has been dismissed. 2. The brief facts of the case are that a vehicle bearing registration number HPS/9240 loaded with trade goods was weighed at the weigh bridge on 23-11-1999 from Export Side. The driver of the vehicle submitted challan No. 143441 dated 04-11-1999, whereby he claimed that goods imported vide GR No 996224 dated 25-10-1999 in vehicle bearing registration No. JK02D/ 7607, rebooked to consignor against the same challan as the road to region of Ladakh, for which goods were booked, was closed. The vehicle was physically checked and it was found that 59 C/B of Masala rebooked in the name of M/s Sona Spices Pvt. Ltd., Chandigarh were not loaded in the vehicle. The fact was brought to the notice of the driver, who stated that he had loaded the goods from the premises of Upkar Transport Co. and was given copy of challan and G.R, which had been accompanying with vehicle bearing registration No. JK02D/ 7607 when the goods were imported into State. Subsequently it was found that on the night intervening 24th and 25th of November 1999 the tool box of the vehicle was filled with 59 C/B of masala. The driver stated that the transporter with the help of conductor had loaded the goods in tool box of the vehicle. Statutory notice was issued to the dealer. 3. After holding that goods were not loaded in the vehicle for export from state but only documents were raised to evade tax on account of sale of the those goods which was obviously made within the state, the Deputy Commissioner imposed penalty to the extent of Rs. 16, 906/- under section 15-A(4) of the Act read with Section 9 (2) of the Central Sales Tax Act, 1956 and a penalty to the extent Rs. 16, 906/- under section 15-A(4) of the Act read with Section 9 (2) of the Central Sales Tax Act, 1956 and a penalty to the extent Rs. 11000/- was imposed upon the Transporter under section 15-A(8) of the Act and levied security to the extent of Rs. 16,906/- against Raj Kumar driver under section 15-A(9) of the Act. The appellant being aggrieved by this order preferred an appeal before the learned Commissioner, which was dismissed vide order dated 18-07-2007, which is impugned in this appeal. 4. I have heard the learned counsel for the parties and have also perused the record on the file. 5. Mr. Vinod Gupta STP appearing for the appellant, has contended that the order of the Deputy Commissioner is illegal and without jurisdiction and the learned Commissioner has not considered this fact in his order. The order of learned Commissioner is not a speaking order and thus principles of natural justice have been violated. He has further argued that proper notices were not issued or served. On the other hand, Mr. M. A Bhat, Advocate appearing for revenue, has contended that the orders of below authorities are perfectly legal and do not require any interference. 6. From the contentions of the parties, the following issues arise in this appeal:- (i) Whether proper and valid notices were not served by the Deputy Commissioner. If so, what is its effect ? (ii) Whether the provisions contained in Section 15-A of the Act are applicable in this case. I shall discuss each issue one by one separately hereinafter. Issue No.I:- 7. Before initiating the proceedings in the matter the Assessing Authority, Sales Tax, Checkpost, Lakhanpur served notices to Driver Raj Kumar on 04-12-1999. These notices were regarding the violation of provisions of Sections 15-A(4), 15-A(8) and 15-A(9) of the Act. By these notices the driver was asked to appear before the Dy. Commissioner, Sales Tax, Checkpost, Lakhanpur on 25-12-1999 to explain as to why penalty shall not be imposed under sections 15-A(4) and 15A(8) of the Act and security under section 15-A(9) not be received. In these notices it was mentioned that the goods have been seized because goods are not supported by the documents specified in Sub-section (2) of the Section 15-A or documents accompanying the goods are fake and false or suspected to be so in respect of particulars contained therein. In these notices it was mentioned that the goods have been seized because goods are not supported by the documents specified in Sub-section (2) of the Section 15-A or documents accompanying the goods are fake and false or suspected to be so in respect of particulars contained therein. In a notice under section 15-A(9) of the Act, it is alleged that taxable goods have been imported without obtaining certificate of registration. This clearly shows that the contents of these notices are totally wrong and contrary to the facts of the case alleged by the department. Even the dates of seizure of the goods mentioned in this notice is not correct. In these notices it is mentioned that the goods were seized under G.R. No 996224 dated 25-10-1999. In the notice of hearing issued under section 15-A(4), CST No. of the appellant/ dealer is mentioned. 8. Under section 15-A(4) of the Act, a penalty can be imposed on the owner for violation of provision contained in Sub-section (2) of this Section. Under Sub-section (8), a penalty can be imposed on transport agency or owner or incharge of the vehicle which has booked the goods referred to in Sub-Section(4) for transport and delivery to the consignee. Similarly, under Sub-section (9) a security can be demanded from the dealer who imposed goods and is not registered under the Act. In such circumstances, the notices are required to be served upon the owner of the goods, transport agency or the owner or incharge of the vehicle which has booked the goods of the dealer. As stated above, in the instant case no notice was given to any of the above said persons or agency by the Assessing Authority or Dy. Commissioner, Checkpost, Lakhanpur. The notice was issued only to the driver Raj Kumar. The admitted facts of the case are that the appellant imported the goods for sale in the area of Ladhakh which is exempted from the payment of sales tax but because of road blockade of the region, the goods did not reach Ladhakh area and the goods were re-booked by Upkar Transport for delivery back to the consignor M/s Sona Spices Pvt. Ltd., Chandigarh. In such circumstances, I would hold that no proper notices were served upon the concerned by the Authorities before initiating the proceedings in the matter. Only notice was served upon the Driver of the vehicle. In such circumstances, I would hold that no proper notices were served upon the concerned by the Authorities before initiating the proceedings in the matter. Only notice was served upon the Driver of the vehicle. It is settled law that if proper notices are not issued or notice, if issued, is invalid then the proceedings taken by the officer would be illegal and void. In taxation matters the issuance of valid and proper notice confers jurisdiction upon the Authority to take action against the defaulter. Reliance is placed upon case Y. Narayana Chetty and Anr. V/s ITO, Vellore & Ors., 1959 ITR 388. 9. For the foregoing reasons, I would hold that no proper and valid notices were served by the Authorities before initiating proceedings in the present case and notices issued in the name of the Driver of the vehicle are invalid. Thus the proceedings taken thereafter are illegal and void. The learned Dy. Commissioner also assumes jurisdiction wrongly on these notices. Issue No.II:- 10. In order to appreciate the respective contentions of the learned counsel for the parties, the relevant provisions in the Act are referred for convenience:- "15-A(1):- If the Government consider that with a view to prevent or check evasion of tax under this Act in any place or places in the State it is necessary so to do, they may by notification in the Government Gazette, direct the setting up of check posts at such place or places and notify the area of the checkposts hereinafter referred to as the notified area, and erect barriers where necessary for the purpose of regulating the passage of goods across such notified area. (2):- No person shall transport within the State across or beyond the notified area any consignment of goods exceeding such quantity or value as may be prescribed by any vehicle or any other mode of conveyance, unless he is in possession of - (a) either a bill of sale, or delivery note or declaration or certificate of ownership containing such particulars as may be prescribed and (b) a way bill in such form and containing such particulars as may be prescribed. Explaination:- The term "goods" referred to in this sub-section shall not include luggage of person who cross the notified area. Explaination:- The term "goods" referred to in this sub-section shall not include luggage of person who cross the notified area. 4(a):- The goods which are covered by sub-section (2) whether found in vehicle or other conveyance, or godown or any other premises of any transporter, clearing or forwarding agency, or any other place, but which are not supported by the documents specified in said sub-section, or, if supported, such documents are fake, false or suspected to be fake or false in respect of the particulars contained therein, shall be seized by the officer incharge, Notified Area or any other officer referred to in sub-section (3) after recording reasons in writing and the owner of such goods shall be liable to penalty which shall be equal to double the amount of tax payable on such goods deeming the invoice value or market value thereof, whichever is higher, as sale price: Provided that the goods liable to seizure and or seized, may, subject to the security furnished in prescribed form for a value equal to the amount of maximum leviable penalty be released. (b) No order of penalty under clause (a) shall be made unless the affected person is given a reasonable opportunity of being heard. The goods seized or the security furnished, as the case may be, shall be released, soon after the penalty levied is paid. (6):- Nothing contained in sub-section (4) or sub-section (5) shall apply in the case of goods transported which are exempt from tax under any of the provisions of this Act without any condition or restriction. The goods seized or the security furnished, as the case may be, shall be released, soon after the penalty levied is paid. (6):- Nothing contained in sub-section (4) or sub-section (5) shall apply in the case of goods transported which are exempt from tax under any of the provisions of this Act without any condition or restriction. [(8):- The transport agency (by whatever name called) which has booked the goods referred to in sub-section (40 for transport and delivery to the consignee or to which is attached the Vehicle which has carried or is carrying those goods, shall pay, by way of penalty a sum not less than 10% but not more than 20% of the invoice value or the market value of such goods, whichever is higher: Provided that if the vehicle is not attached to any transport agency or the transport agency has no place of business in the State, a person deemed to be an agent of such transport agency available in the State or the owner of the vehicle, shall be liable to the said penalty: Provided further before levying penalty the affected person shall ordinarily be given an opportunity of not less than seven days, unless there are reasons to be recorded in writing for giving a shorter notice, to prove to the satisfaction of the concerned officer that the lack of supporting documents specified in sub-section(1) or the fakeness or falsity thereof was not within his knowledge. A certified copy of the order of levying penalty or dropping the proceedings shall be issued to the said person.] Explanation:- The lack of supporting documents or the fakeness or falsity thereof shall be deemed to be within the knowledge of the owner of the vehicle or conveyance if he without reasonable cause fails to comply with any of the requirements of the provisions contained in this section." (9) Where the taxable goods are transported on behalf of an unregistered dealer, (or a registered dealer in whose registration certificate the goods imported are not covered), the officer incharge of the notified area checkpost or barrier, (or any officer authorized under sub-section(3) shall detain (and seize), the goods, unless the dealer, the driver of the vehicle or conveyance or any other person incharge of the goods, furnishes security in the prescribed form for an amount equal to (double the amount of tax, payable on the market value or invoice value, whichever is higher) of such goods. The security thus furnished shall be adjusted against the tax, penalty, interest, fee or any other sum that may be payable by such dealer under the provisions of this Act. The excess amount of security, if any, shall be refundable in the manner laid down in this Act. The provisions relating to (detention and search of goods) contained in this section shall, in so far as may be applicable apply under this sub-section: Provided that if the said dealer fails to obtain a certificate of registration under this Act within a period of 180 days from the date of deposit of security and the Assessing Authority has no information in his possession that the dealer is carrying on regular business of selling taxable goods, the amount of security deposited shall be deemed to be the tax payable by the dealer and no claim for refund of such amount or any part thereof shall be entertained. From the plain reading of the above section, it reveals that the purpose and scope of this section is to prevent or check evasion of tax. This provision is attracted when taxable goods are transported and are not accompanied by any document or if supported by document but same are fake, false or suspected to be fake or false. This provision is, however, not applicable where goods transported are not taxable or which are exempted from payment of tax. This provision is attracted when taxable goods are transported and are not accompanied by any document or if supported by document but same are fake, false or suspected to be fake or false. This provision is, however, not applicable where goods transported are not taxable or which are exempted from payment of tax. It is also clear from the above provisions that the competent Authority has power and is authorized to seize taxable goods when being transported on the grounds mentioned in Sub-section (4) (8) & (9) of the Act. Thus the goods are seized when the goods were being transported for the reasons stated in these subsections. 11. In the present case the position is different. The goods were not transported and only documents were produced before the Authorities at Lakhanpur. If goods were being transported, then there was no violation and no penalty could be levied for any default. Goods were not found in the truck and the goods were to be sold. The documents were raised to create evidence for avoiding payment of sales tax as observed by the Deputy Commissioner. The learned Dy. Commissioner has himself stated that this is a unique case of tax evasion where the goods were not loaded in the vehicle and were not factually being exported outside the state but only documents were raised to create evidence to avoid the payment of tax. It is true that in this matter unique method has been adopted by the dealer or transporter to evade tax but the Authorities have not taken proper course to penalize the defaulter in the matter. Proceedings under section 15-A of the Act have taken which is not applicable in the case. This plea was also raised before the learned Commissioner in the appeal but the learned Commissioner has not discussed the same. The learned Commissioner decided whole matter in one para by stating as under:- "I have heard the representative of the applicant. The simple fact is that the truck which was checked at Lakhanpur Checkpost was found not carrying the goods in question for which the documents were presented. The only inference that can be drawn from this action is that the dealer had failed to take the goods to Ladhakh on account of closure of road and evidently made the sale of goods elsewhere. The only inference that can be drawn from this action is that the dealer had failed to take the goods to Ladhakh on account of closure of road and evidently made the sale of goods elsewhere. By presenting the documents at Lakhanpur Checkpost without the actual movement of goods, the dealer wanted to evade the tax which had become due to him. The order of the Assessing Authority is well reasoned and clearly indicates that for the timely action at the Checkpost, the dealer would have been able to evade the tax what was rightly due from him. Therefore there is no reason to interfere with the order of the Assessing Authority. Accordingly the appeal is dismissed and the file consigned to records after due completion." This shows that the learned Commissioner has not given any reasons for justifying the order of penalty passed by the Dy. Commissioner. The learned Commissioner has not met with the contentions raised by the appellant before him in the appeal. Thus the order of the learned Commissioner is not a speaking order and cannot sustain in law. 12. Section 15-A of the Act is applicable only when the goods are being transported within the State without possession of the documents specified in Sub-section (2) or if supported by documents then such documents are not genuine. This section has no application when goods are not being transported but only documents are raised and presented before the officer incharge of the sales tax, Checkpost. In the instant case only documents were raised and produced before the Assessing Authority, Sales Tax Checkpost, Lakhanpur and goods were not found in the vehicle. Subsequently, after two days the goods were loaded in tool box of the vehicle. The vehicle was custody of the Lakhanpur Sales Tax Authorities as it was kept in their yards and goods were loaded in the vehicle there. This cannot happen without the connivance of the employees of the sale tax department. In such circumstances, the remedy does not lie under section 15-A of the Act but by other way. A fraud has been committed which also attracts criminal liability of the defaulter under general law. No proper action has been taken in the matter. 13. For the foregoing reasons, I would hold that the provisions of section 15-A of the Act are not applicable in the case. 14. A fraud has been committed which also attracts criminal liability of the defaulter under general law. No proper action has been taken in the matter. 13. For the foregoing reasons, I would hold that the provisions of section 15-A of the Act are not applicable in the case. 14. The net result of the above findings is that the order of penalty and demand of security passed by the Dy. Commissioner, Sales Tax Checkpost, Lakhanpur, duly confirmed in appeal by vide order dated 18-07-07 by the Commissioner, Commercial Taxes, J&K is illegal and void and requires to be quashed. Accordingly the appeal of the appellant is accepted and the orders of the Deputy Sales Tax Commissioner, Sales Tax Checkpost, Lakhanpur & the Commissioner, Commercial Taxes, J&K are quashed.