JUDGMENT : Shantanu Kemkar, J. 1. The petitioner engaged in the business of goods transport was carrying goods (Palm Oil) of M/s. Shri Hari Enterprises (seller of the goods) for being delivered to M/s. Mahajan Traders (buyer) in three tankers. On 13.08.2013 during transportation, the tankers along with the goods were stopped by the Commercial Tax Officer, Anti Evasion Bureau, Indore-A, Indore (hereinafter referred to Check Post Officer) in exercise of its powers under Section 57(5) of the Madhya Pradesh Value Added Tax Act, 2002 (for short, the Act). As the goods in movement were not supported by the documents, the Check Post Officer, in terms of Section 57(6)(b) of the Act, detained the tankers along with the goods. Thereafter, the Check Post Officer, proceeded under Section 57(8) of the Act and imposed penalty on the petitioner/transporter vide orders dated 12.09.2013 cumulatively marked as Annexure P/1. The petitioner, on whom the penalty was imposed under Section 57(8) of the Act, opted for composition of penalty, as provided under Section 57(17) of the Act and deposited the amount of penalty on 20.09.2013. On depositing the penalty amount, the petitioner submitted letters dated 20.09.2013 cumulatively marked as Annexure P/3 under Section 57(11) of the Act, seeking release of the tankers along with the seized goods in its favour. However, the petitioner's prayer was not acceded to by the Check Post Officer. On the other hand, the petitioner was directed to unload the tankers and to take delivery of only the empty tankers. The goods were not released in favour of the petitioner so as to effect the recovery of tax assessed by the Commercial Tax Department against seller of the goods M/s. Shri Hari Traders. 2. Aggrieved by denial of release of goods in its favour, the petitioner submitted a letter dated 03.10.2013 along with affidavit of the seller M/s. Shri Hari Enterprises, stating therein that it (the seller) has already sold the said goods and received the price of the goods from the buyer (M/s. Mahajan Traders). The petitioner also contacted M/s. Mahajan Traders, who had paid the price of the goods to the seller Shri Hari Enterprises, on which M/s. Mahajan Traders had informed the petitioner that they are willing to take delivery and shall also pay the petitioner, the amount of penalty paid by it as also the transportation and demurrage charges. The petitioner also contacted M/s. Mahajan Traders, who had paid the price of the goods to the seller Shri Hari Enterprises, on which M/s. Mahajan Traders had informed the petitioner that they are willing to take delivery and shall also pay the petitioner, the amount of penalty paid by it as also the transportation and demurrage charges. In support of its claim, that it had already paid the price of the goods to M/s. Shri Hari Enterprises, M/s. Mahajan Traders (buyer) of the goods in question had tendered its bank statement to the petitioner. The petitioner submitted all the said documents to the Check Post Officer and reiterated his request to release the seized goods by stating that since M/s. Hari Traders has already sold the goods and therefore, for its alleged tax dues the goods in question cannot be detained. In spite of this, when the goods were not released, the petitioner had filed this writ petition under Article 226 of the Constitution of India. 3. The case of the petitioner is that the action of the respondents in detaining the goods even after receiving from the petitioner, the amount of penalty imposed upon it, is mala fide and illegal. According to the petitioner, Section 57(11) of the Act provides for release of the goods in favour of the transporter on payment of penalty imposed. The petitioner submits that for the alleged recovery of tax from the seller of the goods, who had already parted with the ownership of the goods, the petitioner cannot be deprived the benefit of Section 57(11) of the Act. It is also the case of the petitioner that in case goods are not released in its favour, then it will not be possible for the petitioner to recover the penalty amount and cost of transportation from the concerned parties; resulting in irreparable financial loss to it. 4. The respondents have filed return and have stated that the petitioner was transporting palm oil from Gujarat to Madhya Pradesh in three tankers. The tankers were intercepted by a team of officers of Anti Evasion Bureau, Indore-A of the Commercial Tax Department. On inspecting the documents, it was found that the person in-charge of the respective vehicles was keeping the photocopy of Form-49 instead of original. The tankers were intercepted by a team of officers of Anti Evasion Bureau, Indore-A of the Commercial Tax Department. On inspecting the documents, it was found that the person in-charge of the respective vehicles was keeping the photocopy of Form-49 instead of original. During investigation, it was found that the buyer M/s. Mahajan Traders had not paid the amount to the seller of the goods M/s. Shri Hari Enterprises. The business place of seller of the goods M/s. Shri Hari Enterprises was visited by the officers of the Commercial Tax Department. It came to the notice of the said officers that M/s. Shri Hari Enterprises has not paid the tax to the Commercial Tax Department, which was actually payable. A notice for assessment was issued and thereafter on 10.09.2013 order was passed creating extra demand of Rs. 57,44,000/- (rupees fifty seven lakhs and forty four thousand) with total tax liability of Rs. 74,39,950/- (rupees seventy four lakhs thirty nine thousand and nine hundred fifty) against M/s. Shri Hari Enterprises. After the aforesaid assessment, Revenue Recovery Certificate (RRC) was issued on 15.10.2013 for recovery of Rs. 74,39,950/- against M/s. Shri Hari Enterprises. As the amount was not deposited by M/s. Shri Hari Enterprises, the recovery was to be made from its movable/immovable properties. Keeping in view the fact that the goods in question were belonging to M/s. Shri Hari Enterprises the same were not released, so that the tax could be recovered out of the sale proceeds of the goods. It is also the case of the respondents that M/s. Shri Hari Enterprises also had informed the respondents to recover its dues of taxes from the said detained goods therefore, the said goods were not released in favour of the petitioner. 5. We have heard learned counsel for the parties at length and perused the record. 6. Before dealing with the controversy involved in this writ petition, it would be appropriate to extract Section 57 of the Act, which reads as under:- 57: Establishment of check-post and inspection of goods while in movement. 5. We have heard learned counsel for the parties at length and perused the record. 6. Before dealing with the controversy involved in this writ petition, it would be appropriate to extract Section 57 of the Act, which reads as under:- 57: Establishment of check-post and inspection of goods while in movement. (1) The State Government or the Commissioner may, with a view to prevent or check evasion of tax under this Act, set up or erect in such manner as may be prescribed, check posts or barriers at such places in the State, excluding railway premises, as may be notified in the official gazette and an officer, not below the rank of Assistant Commercial Tax Officer shall be in-charge of the check post (hereinafter referred to as the check post officer) and he shall be assisted by other category of officials: Provided that the Commissioner shall not set up a check post or erect a barrier for a period exceeding six months at a time. (2) The driver or the person in-charge of a vehicle or carrier or of goods in movement (hereinafter referred to as the transporter) shall - (a) carry with him an invoice, bill or challan or any other document and prescribed declaration forms issued by the consignor or consignee of the goods in movement and challan, bills or any other document issued by the transporter; (b) stop the vehicle or carrier at every check-post or bring and stop the vehicle or carrier at the nearest check-post, while entering and leaving the limits of the State, set up under sub-section (1); (c) furnish all the documents including prescribed declaration forms relating to the goods before the check post officer; (d) give all the information relating to the goods; and (e) allow the inspection of the goods by the check post officer or any other person authorised by the check post officer: Provided that the documents including prescribed declaration forms shall be required to be carried and/or furnished only in respect of the goods as may be notified by the State Government. Provided further that if the transporter transporting goods by a road on which check post or barrier is not established, furnishes the documents including declaration form specified in clause (a) at the nearest Commercial Tax Office, immediately after entry into the State of Madhya Pradesh or before exit from the State, he shall be deemed to have complied with the requirement made under clause (b). (3) The form of declaration specified in sub-section (2) shall be obtained by a registered dealer in the prescribed manner. (4) The documents required to be furnished under sub-section (2), may be furnished by means of such electronic devices, and may be accompanied by such processing fee, as may be prescribed. (5) Where any goods are in movement within the territory of the State of Madhya Pradesh, any officer, not below the rank of an Assistant Commercial Tax Officer, as may be authorised by the Commissioner, may for the purposes of this Act, stop the vehicle or the carrier or the person carrying such goods, for inspection, at any place or inspect such goods and the documents relating to the goods which are in the possession or control of a transporting agency or person or other such Bailee and the provisions of sub-section (2) shall mutatis mutandis apply. (6) Where any goods in movement are not supported by documents as referred to in sub-section (2), or documents produced appear false or forged, the check post officer or the officer empowered under sub-section (5), for reasons to be recorded in writing may- (a) direct the transporter not to part with the goods in any manner including re-transporting or re-booking, till a verification is done or an enquiry is made, which shall not take more than seven days; (b) detain or seize the goods or the vehicle or carrier along with the goods and shall give a receipt of the goods or the vehicle or carrier along with the goods, if seized, to the person from whose possession or control they are seized; (c) release the goods or the vehicle or carrier along with the goods seized in clause (b) in favour of the transporter, during the pendency of the proceeding if adequate security in the form of cash security or irrevocable bank guarantee of the amount equal to the penalty leviable under sub-section (8) or (10) is furnished. (7) The officer empowered under sub-section (5), who stops the vehicle or carrier, may direct the transporter to take the vehicle or carrier along with the goods and the documents to the nearest check post or any Commercial Tax Office to be named by him and stop it and keep it stationary there till such time as may be required for action in accordance with the provisions of this section, and the officer shall reach such check post or such Commercial Tax Office at the earliest and immediately on reaching there initiate action for seizure of goods or the vehicle or carrier along with the goods and impose penalty in accordance with the provisions of this section. (8) The check post officer or the officer empowered under sub-section (5), after having given the transporter a reasonable opportunity of being heard and after having held such enquiry as he may deem fit, shall,- (i) release the goods or the vehicle or carrier along with the goods in favour of the transporter, if he is satisfied that no violation of the provisions of sub-section (2) has taken place; or (ii) impose, if he is not satisfied, on him for possession or movement of goods, whether seized or not, in violation of the provisions of sub-section (2) or for submission of false or forged documents or declaration, a penalty equal to maximum [3.5 times- 1.4.2006 to 31.3.2007 ] ten times (upto 31-07-2009) seven times of the amount of tax which would have been payable if the goods were sold within the State on the date of inspection: Provided that the amount of penalty shall not be less than [3 times-1.4.2006 to 31.3.2007] eight times (upto 31-07-2009) five times of the amount of tax. (9) Where a transporter, in possession or control of goods, is found to be in collusion with a dealer involved in avoidance or evasion of tax, the check post officer or the officer empowered under sub-section (5) shall detain the vehicle or carrier of such transporter and after affording him an opportunity of being heard and with the prior approval in writing of the Deputy Commissioner having jurisdiction, may confiscate such vehicle or carrier. (10) Notwithstanding anything contained in this section, where the transporter abstains from bringing or stopping the vehicle or carrier at the check-post as provided under clause (b) of sub-section (2), the check post officer or the officer empowered under sub-section (5) may detain such vehicle or carrier and, after affording an opportunity of being heard to the transporter, may impose, in addition to a penalty which may be imposed under sub-section (8), a penalty equal to maximum twice the amount of tax which would have been payable if the goods were sold within the State on the date of detention. (11) The check post officer or the officer empowered under sub-section (5) may release the goods in favour of the transporter, if seized and not already released under clause (c) of sub-section (6), on payment of the penalty imposed under sub-section (8) or (10). (12) If the amount of penalty specified in the order passed under sub-section (8) or (10) is not paid within fifteen days of the service of the order, the check post officer or the officer empowered under sub-section (5) shall, notwithstanding anything to the contrary provided in this Act or in any law for the time being in force, cause the goods to be sold in such manner as may be prescribed and apply the sale proceeds thereof towards the penalty and refund the balance, if any, to the transporter and if the sale proceeds of the goods are not sufficient to cover the amount of penalty or the goods can not be sold despite the efforts made for the same, the said officer shall cause the vehicle or carrier to be sold in the aforesaid manner and apply the sale proceeds thereof towards the balance of penalty and refund the balance of such sale proceeds, if any, to the transporter. (13) Where the officer seizing the goods, at any time during the pendency of the proceeding under sub-section (8) or (10), is of the opinion that the goods are subject to speedy and natural decay or when the expenses of keeping them in custody are likely to exceed their value, he may cause them to be sold in such manner as may be prescribed without waiting for the completion of the proceedings relating to the imposition of penalty and keep the sale proceeds thereof in deposit till the completion of said proceedings and the amount so kept in deposit shall be applied towards such penalty, if any, as may be imposed and the balance, if any, shall be refunded to the transporter according to the provisions of sub-section (12). (14) The transporter may authorise, in such manner as may be prescribed, the consignor or consignee of the goods or the vehicle or carrier along with the goods seized under this section, to appear before the check post officer or the officer empowered under sub-section (5) in the proceedings under sub-section (8) or (10) and such consignor or consignee shall be deemed to be the transporter for all purposes mentioned in the aforesaid sub-sections and the provisions of section 31 shall apply to proceedings under this section as if the transporter is a dealer. (15) If a transporter fails to give information as required from him under clause (d) of sub-section (2) about the consignor, consignee or the goods within such time as may be specified or transports the goods with forged documents, besides imposing the penalty under sub-section (8), it shall be presumed that the goods so transported have been sold in the State of Madhya Pradesh by him and he shall be deemed to be a dealer for those goods under this Act. (16) The provisions of this Act shall, for the purpose of levy, collection and assessment of tax, payment and recovery of tax and interest, appeal and revision, apply to the transporter deemed to be a dealer under sub-section (15). (16) The provisions of this Act shall, for the purpose of levy, collection and assessment of tax, payment and recovery of tax and interest, appeal and revision, apply to the transporter deemed to be a dealer under sub-section (15). (17) Subject to such restrictions and conditions and in such manner as may be prescribed, a transporter, on whom a penalty has been imposed under sub-section (8), may opt to pay in lieu of penalty a lump sum amount, which shall be [ twice-1.4.2006 to 31.3.2007 ] [ five times - 1.4.2007 to 11.5.2008 ] three times the amount of tax referred to in sub-section (8) and once the transporter has exercised the option he shall not have any right to challenge the order of penalty in any forum. Explanation. - For the purposes of this section - (i) "vehicle or carrier" means any means of transportation to carry goods from one place to another place; and (ii) "goods in movement" means,- (a) the goods which are in the possession or control of a transporting agency or person or other such Bailee; (b) the goods which are being carried in a vehicle or carrier belonging to the owner of such goods; and (c) the goods which are being carried by a person. 7. Having considered the submissions made by the learned counsel for the parties and the documents filed by them, it is revealed that after the order imposing the penalty against the petitioner was passed on 12.09.2013. The petitioner had opted to pay a lump sum amount as per Section 57(17) of the Act and paid the penalty amount on 20.09.2013. In the circumstances, when once the petitioner had paid the penalty imposed upon it by the Check Post Officer, in our considered view, it was incumbent upon the Check Post Officer to have exercised its power under Section 57(11) of the Act to release the goods seized by it in favour of the transporter. 8. In the circumstances, when once the petitioner had paid the penalty imposed upon it by the Check Post Officer, in our considered view, it was incumbent upon the Check Post Officer to have exercised its power under Section 57(11) of the Act to release the goods seized by it in favour of the transporter. 8. As regards the alleged dues of tax against the seller from the documents filed by the parties, it is revealed that before expiry of period of Notice of Demand issued to seller M/s. Shri Hari Enterprises, as required under Section 27 of the Act read with Rule 41 of the MP VAT Rules, 2006 (for short, Rules), the goods were already sold by M/s. Shri Hari Enterprises to M/s. Mahajan Traders and its ownership no more remained with M/s. Shri Hari Enterprises. Thus, in our considered view, the seller M/s. Shri Hari Enterprises having already received the price of the goods and having handed over the goods to the petitioner/transporter for being delivered to the buyer, the goods could not have been detained by the Check Post Officer for realization of the tax assessed by it against the seller. The amount of tax against M/s. Shri Hari Enterprises was crystalized and became payable after the sale of the goods was already complete. Having regard to the aforesaid, the action of the respondents in not releasing the goods in favour of the petitioner/transporter is violative of Section 57(11) of the Act, and therefore, the same cannot be sustained. In the result, the petition is allowed. The respondents are directed to release the tankers with goods in favour of the petitioner forthwith. C. c. within three days. Appeal dismissed.