1. The appellant is aggrieved by the order of the Ld. Commissioner, Sales Tax (Appeals) (Appellate Authority), Jammu, passed any him in an appeal filed against the order of the Ld. Dy. Sales Tax Commissioner, (Admn.) Jammu. 2. The string of incidents, put in a sequence, as they emerge from a study of the file, under consideration, are, very briefly as under: One consignor M/s New French Trading Co., Ludhiana, on 18.4.2003, taxable goods by a vehicle No. 5178-PB13F to one consignee M/s Gupta Readymade, Purani mandi, Jammu, the appellant in the instant case. The Dy. Sales Tax Commissioner, (Admn.) Jammu, intercepted the vehicle while in transit and on physical verification of the goods, it was found that these were covered under GR No. 10477 dated 16.4.2003 of M/s Chinar Transport (Ludhiana). The documents attached to the GR under the invoice No. 70 dated 16.4.2003 for Rs. 38881/- pertaining to the readymade garments were found by the Ld. Dy. Sales Tax Commissioner, (Admn.) to be fake / false in respect of both the quantity and value of the goods. The goods were seized under section 15-A (4) of the Jammu and Kashmir sales tax act, 1962 and an inventory of the same was prepared. A statutory notice, in Form ST-40, was served upon, the In-charge of the goods. In response to the said notice, the dealer, filed an application through his counsel, Sh.R.K. Sharma, for release of the goods. The counsel did not, it is stated, object to the levy of penalty. A penalty of Rs. 10718/- was imposed on the dealer vide an order dated 21.4.2003. The dealer deposited the penalty where after the seized goods were released in his favour. 3. With this stated background- material, at our disposal, I now proceed with appreciation, assessment and evaluation of the initial order of the Ld. Dy. Commissioner and the subsequent decision by the Ld. Commissioner on the appeal, against the order. 4. In order better to assess the key issue , the relevant excerpt of the order, dated 21.4.2003, of the Ld. Dy. Commissioner (Admn.) Jammu, is reproduced below :- "Statutory notice in form ST-40 in the case was issued to the In charge of the goods directing him to appear in person or through an authorized representative on or before 3.5.2003, and to show cause as to why the penalty is not imposed. Dy. Commissioner (Admn.) Jammu, is reproduced below :- "Statutory notice in form ST-40 in the case was issued to the In charge of the goods directing him to appear in person or through an authorized representative on or before 3.5.2003, and to show cause as to why the penalty is not imposed. In response to the said notice, Sh. R.K. Sharma, counsel for the dealer appeared and has filed an application requesting therein that the goods, so seized, may be released. The counsel for the dealer did not object the action proposed under section 15-A (4) of the Act in the notice issued to him. Accordingly the request of the dealer is acceded and the penalty under section 15-A(4) of the J&K GST Act, 1962, amounting to Rs. 10718/- @8.4% ( which is equivalent to double the amount of tax) is imposed on the concealed value of Rs. 127600/-. The dealer has furnished to the undersigned the receipt of the amount of penalty imposed, where after the seized goods shall be released". 5. Having heard the arguments, advanced at the bar, and having also, thoughtfully considered the material on record the perusal of the order, cited above, makes it clear that the notice, in the form ST-40, has been issued to the "In-charge of the goods" and not to the dealer. "The in-charge of the goods" is directed to appear before the Ld. Dy. Commissioner in person, or through an authorized representative on, or before, 03.05.2003. The order appears to have been passed with indecent haste, much before the date fixed in the notice. The counsel for the dealer, who appeared before the Ld. Dy Commissioner, filed an application requesting the release of the seized goods. It is, stated in the order that the counsel for the dealer did not object to the action proposed, under section 15-A (4) of the J&K General Sales Tax Act, in the notice, issued to him, and accordingly penalty was imposed on the dealer. 6. From the material available, on record, there is no evidence anywhere to suggest that the Ld. Counsel made any admission, before the Ld. Dy. Commissioner (Admn.) Jammu, to the effect that penalty be imposed on the dealer. 6. From the material available, on record, there is no evidence anywhere to suggest that the Ld. Counsel made any admission, before the Ld. Dy. Commissioner (Admn.) Jammu, to the effect that penalty be imposed on the dealer. To obviate all doubts, whether, or not, any such admission was made, and, if made, was not the outcome of any duress or undue influence but was a voluntary one, it was incumbent on the concerned authority to record such admission, allegedly made, and to reduce it to writing so that at least a semblance of fairness could be attached to the order passed. This has not been done. It needs must be understood, and, taken note of, that the penalty proceedings are quasi-criminal in nature, and, in such proceedings the person affected has to be given an opportunity of being heard so that due adherence is given to the principles of natural justice . In the absence of any material supporting such alleged admission it can easily be inferred that the Ld. Dy. Commissioner (Admn.) was already predisposed to impose the penalty on the dealer. The order of the Ld. Dy. Commissioner is in gross violation of the Principles of Natural Justice. The court has to exercise its jurisdiction to set right the illegality that has been allowed to creep in. 7. Again the time granted to file objections was on or before 3.5.2003, but actually the order was passed on 21-4-2003, much before the expiry of that period. The appellant has thus been denied the right to file objections to the proposed penalty. This very material aspect of the case has completely been lost sight of by the Ld. Commissioner, Sales tax, before whom an appeal was preferred against the order of the Ld Dy. Commissioner. 8. Assuming for the sake of argument, only but not conceding, that any admission was made by the Ld. Counsel, at the time of seeking the release of the seized goods, by an application made by him on that count, as stated in the order itself, the question arises as to whether any weight can or should be attached to such an admission under law. The answer to this question can only be an emphatic "NO". The law laid down in VAT and Service Tax Cases Vol. 5 page 278 para 10 justifies this "No". The answer to this question can only be an emphatic "NO". The law laid down in VAT and Service Tax Cases Vol. 5 page 278 para 10 justifies this "No". It has been held as follows; "Once the relevant and prescribed documents as prescribed under section 78(2) of the Act quoted above, namely bill and bilty, are found, unless these documents are found to be false or forged, the imposition of penalty under section 78(5) of the Act, cannot be justified. Such admission or representations made before the assessing Authority for securing release of goods may be made in peculiar circumstances obtaining before the assessee at that moment, but it does not absolve the assessing authority to hold enquiry into the matter and objectively arrive at the conclusion that either the prescribed documents are not available or the produced documents are false or forged. Such hasty self-serving admissions are nothing better than admission of guilt before the police authorities, which are not even admissible in evidence. They may be made under fear or undue influence of authorities, even by not specifically authorized persons on behalf of the assessee or may be made as self-serving admissions to get over with the lengthy proceedings. had it been end of the matter for the assessing authority with such admission being conclusive proof of guilt of evasion of tax, the very purpose of the need to hold enquiry under section 78(50 of the Act would be defeated. It is not the intention of the Legislature to let such loose ends in penal provisions like section 78(5) ; therefore, the authorities cannot be let free to impose penalty, without holding proper enquiry in the matter. Without this kind of enquiry, the imposition of penalty under section 78(5) of the Act, cannot be justified because intimately what is being imposed by the assessing authority is a penalty and not a tax which is imposed by virtue of charging provisions of taxing enactment read with relevant notification of rate of tax. In imposition of penalty, the existence of guilty animus is essential and in arriving at the finding of the same, holding of enquiry by the assessing officer is a sine quo non." 9. The law laid down in [2007 ] 5 VST 276 (Raj.) also assume significance in the matter and it is as under:- "....... In imposition of penalty, the existence of guilty animus is essential and in arriving at the finding of the same, holding of enquiry by the assessing officer is a sine quo non." 9. The law laid down in [2007 ] 5 VST 276 (Raj.) also assume significance in the matter and it is as under:- "....... Secondly, the assessing authority had failed to appreciate the averments made in the reply to the notice, which showed that only the mistake of making two bills, if at all, was admitted and there was no admission of guilt of evasion of tax on the basis of the factum of issuing these two bills. The assessing authority had not explained how the mere presence of a duplicate bill bearing hand written No. 940 could per se result in any evasion of tax, particularly when in both these bills, the same goods were shown to be sales tax paid. No case of imposition of penalty under section 78(5) of the Act had been made out and it was essentially a finding of fact, if the authorities in the hierarchy, choose in their discretion, not to impose the penalty under section 78(5) of the Act had been made out and it was essentially a finding of fact, , namely, bill and bilty relating to the goods were admittedly there at the time of checking in transit. There was no finding or even an allegation that these documents were false or forged. Without holding a proper enquiry into the matter after affording an opportunity of hearing to the respondent in this regard, which was the mandate of law, no such inference or finding could be arrived at by the assessing authority which could provide the foundation for imposition of penalty under section 78(5) of the Act. (See paras 10 and 13)". In view of what the judgments referred to adumbrate it is clear that the appellant has not been given justice. 10. Now Looking at the case from yet another angle no notice has been served on the dealer as can be seen from the perusal of the order dated 21.4.2003, of the Ld. Dy. Commissioner (Admn.) The said officer has, in unequivocal terms, stated in the order that statutory notice was issued to the "in charge of the goods". 10. Now Looking at the case from yet another angle no notice has been served on the dealer as can be seen from the perusal of the order dated 21.4.2003, of the Ld. Dy. Commissioner (Admn.) The said officer has, in unequivocal terms, stated in the order that statutory notice was issued to the "in charge of the goods". "In-charge of the goods" was the carrier itself i.e. the driver of the vehicle, in which these were loaded and it was he who was directed, by the said authority, to appear before him on a particular date. Under these circumstance, it is not known how and why a penalty has been imposed upon a person to whom the notice has never been issued. The order was passed within two or three days after the seizure of the goods with out any notice to the petitioner and the same cannot therefore stand the scrutiny in any further proceedings available to the party concerned. 11. The order further brings it to the fore that the petitioner was never informed about the seizures, enquiry and report nor was he given any opportunity to controvert , rebut or prove otherwise the allegations leveled against him. Any order passed which prejudicially affects some body must be supported by reasons thereof. The order passed by the Ld. Dy Commissioner, is the outcome of surmises, conjectures and his personal feelings. There is no supporting evidence to justify the action taken by him. Rule 40-D of J&K General Sales Tax Rules, 1962 lays down the procedure and formalities required to be followed in such cases for conducting enquiry before levy of "penalty" which has not been complied with by the Ld. Dy. Commissioner. 12. Under clause (a) of section 15-A(4) the Ld. Dy Commissioner was obliged to record reasons in writing for the seizure of the goods when he thought in his wisdom that the same are required them to the seized. There is nothing on record to show that this was done by the Ld. Dy. Commissioner. Therefore the condition precedent for exercising jurisdiction under section 15-A(4 ) of the Act has not been complied with. Recording of reasons is absolutely necessary as otherwise the powers conferred upon the Authority under this provision would become unbridled and arbitrary. In not recording the reasons the seizure can be held to be invalid in the eyes of law. Commissioner. Therefore the condition precedent for exercising jurisdiction under section 15-A(4 ) of the Act has not been complied with. Recording of reasons is absolutely necessary as otherwise the powers conferred upon the Authority under this provision would become unbridled and arbitrary. In not recording the reasons the seizure can be held to be invalid in the eyes of law. Resort can be had in this behalf from the law laid down in cases Commissioner of Commercial Taxes v. Ram Kishan Shri Kishan Jhaver & Ors. (1967) 20 STC 453 and Oriental Rubber Works v. A.K.Sinha & Ors. (1974) 34 STC 30 . 13. In his order the Ld. Commissioner has stated that goods were under valued. He has stated that the market survey was conducted by him before arriving at such a conclusion. He has not clarified what was the evidence collected by him that prompted him to make this decision. In Hindustan Zinc Ltd. v. Commissioner of Central Excise, Jaipur (2005) 2 Supreme Court Cases 662 at para 10, it has been held as under : "This seems to suggest that some market enquiry was made. However, it could not be shown to us what that market enquiry was . The above statement also shows that silver chloride sold in the market had 75% silver content. In the present case, the department has made no efforts to ascertain whether silver chloride emerging from the treatment adopted in the assessee's factory, having 50% to 53% silver content, had a market. Mathematical ratio between total quantity of silver chloride and silver content cannot establish marketability. The burden was on the department to prove such marketability. in the circumstances, on facts we hold that the department has failed to prove the test of marketability." 14. Applying the ratio of the law laid down above to the facts of the instant case it was the Revenue that had to discharge the burden to prove not only that a market enquiry was conducted but also the nature of such an enquiry. This had to be done on the basis of documentary evidence which has not been produced. In order to give the entire proceedings at least a semblance of fairness, it was incumbent on the revenue to do so. The Assessing Authority has carried the proceedings simply to fasten the liability of penalty on the dealer without maintaining any record. 15. This had to be done on the basis of documentary evidence which has not been produced. In order to give the entire proceedings at least a semblance of fairness, it was incumbent on the revenue to do so. The Assessing Authority has carried the proceedings simply to fasten the liability of penalty on the dealer without maintaining any record. 15. The pith and fore of what has been said above and the judgments germane to the case at issue are:- (1) No one is summarily tried and punished; (2) Ample time and enough opportunity should be allowed and provided to each party to prove his/ her/ their side; (3) No one should harbour a grievance that he/she/ has been given an unfair deal; (4) If some action is ordered and taken it must be open, public and transparent. For instance, in this case, the Learned Commissioner has observed that goods were under valued. He further says that market survey was conducted. The appellant has not been informed about it nor has the methodology used in the market survey been spelt out for the benefit of persons or parties concerned. 16. Viewed thus for all that has been done and said above the principles of Natural justice have been violated with impunity in the instant case. The penalty has been levied upon the dealer in indecent haste. No notice has been issued to the dealer and the value of the goods has been determined arbitrarily. The order has been passed in violation of the statutory provisions contained in the Section 15 (a) (4) of the Jammu & Kashmir General Sales Tax Act. Therefore the order being illegal and improper cannot sustain. Accordingly, the impugned orders passed by the ld Commissioner, Commercial Taxes, and the ld. Dy. Commissioner whereby the penalty has been levied upon the appellant are quashed. File shall be consigned to records after its due completion.