ORDER : Abdul Rehim, J. The revision petitioner is the appellant in T.A. (VAT) 75/2015 on the files of the Kerala Value Added Tax Appellate Tribunal, Additional Bench, Kozhikode, who is challenging the order of the Tribunal dated 18-09-2018 dismissing the appeal. 2. The Intelligence Inspector, Squad No.2, Commercial Taxes, Kozhikode had intercepted a consignment despatched by the revision petitioner, while inspecting the premises of 'KRS Parcel Service' Kozhikode, on 30-12-2013. The interception was based on an allegation that it was transported without proper documents as required under Section 46 (3) of the Kerala Value Added Tax Act, 2003 ('KVAT Act', for short) read with Rule 67 (7) of the KVAT Rules. In the notice issued demanding payment of Security Deposit, the reasons mentioned for the detention are as follows; “as per the amended provision of sub rule 15 of Rule 58 of Kerala Value Added Tax Rules, 2005 the entries in delivery note should be made in double sided carbon paper. But the delivery note accompanied here contain not fulfilled the above condition. Hence accompanying documents found invalid. Hence notice issued demanding security deposit.” Upon the revision petitioner furnishing the security to the tune of Rs.84,915/-, the goods were released and allowed to be transported. The detention was followed by an enquiry conducted by the Intelligence Officer (Rapid Action), Entry Tax, Kozhikode, as contemplated under Section 47 (5) of the Act. The said officer found that; “on going through the records it is seen that the dealer violated the provisions contained in the Rule. The dealer in his statement stated that the goods were 'purchase returns'. The dealer produced copies of two invoices which were not declared in any border check post to prove that the goods were received through ABC Apparel, Chennai earlier. Two invoices consisted 206 numbers of RN goods valued Rs.1,63,270/-. But the dealer transported 781 numbers valued Rs.8,49,115/- as per delivery note No.0879060, dated 30-12-2013. Hence the dealer failed to establish that the goods were 'purchase returns'. Therefore it was found that, there is an attempt of evasion of tax in the case. Based on the above finding penalty was imposed under Section 47 (6) to the tune of Rs.84,915/-. The Security Deposit was directed to be adjusted against the penalty imposed. 3. Aggrieved by the order imposing penalty, the revision petitioner took up the matter before the Assistant Commissioner (Appeals), Commercial Taxes, Kozhikode. Based on the above finding penalty was imposed under Section 47 (6) to the tune of Rs.84,915/-. The Security Deposit was directed to be adjusted against the penalty imposed. 3. Aggrieved by the order imposing penalty, the revision petitioner took up the matter before the Assistant Commissioner (Appeals), Commercial Taxes, Kozhikode. While considering the contentions of the appellant, that the transaction involved no sale and the goods were moving outside the state as 'purchase return', it was noticed by the appellate authority that the seller had issued 'Credit Note' against the purchase return effected by the revision petitioner. Contention raised was that, there arose no question of evasion in payment of any tax due. But the first appellate authority found that the revision petitioner had not fulfilled the mandatory requirement under Rule 58 (16) of the KVAT Rules in making the 'Delivery Note' using double sided carbon paper. Further it was observed that, the Enquiry Officer had found that the two invoices produced were not seen declared in any of the border check posts, in order to prove that the goods were originally received from the dealer in Chennai. Therefore the appellate authority observed that, he finds no reason to interfere with the order imposing penalty. 4. In a second appeal filed by the revision petitioner before the Tribunal, it was contended that, apart from the non-fulfilment of the condition stipulated under Rule 58 (16), there exists no attempt at evasion of payment of tax. But the Tribunal observed that the non-compliance of the condition stipulated under Section 58 (16) itself will create a strong suspicion that, there was an attempt at evasion of payment of tax on the part of the revision petitioner. Further it was observed that, the revision petitioner had not succeeded in establishing his case that the goods were transported as 'purchase return'. It was also observed that the invoices produced by the revision petitioner was not seen declared in any of the check posts. Therefore it was found that there exists no ground to interfere with the finding of the Enquiry Officer that there was an attempt at evasion of payment of tax on the part of the revision petitioner. It is against the said order, the Revision Petition is filed. 5. Heard; Sri. R. Jaikrishna, learned counsel for the revision petitioner and the learned Government Pleader appearing for the respondent. 6. It is against the said order, the Revision Petition is filed. 5. Heard; Sri. R. Jaikrishna, learned counsel for the revision petitioner and the learned Government Pleader appearing for the respondent. 6. It is mainly contended that, even assuming that there exists default in complying with the mandatory conditions stipulated under Section 58 (16) in filling up the Delivery Note by using double sided carbon paper, that by itself cannot be taken as a reason to arrive at an inference that there existed an attempt at evasion of payment of tax. Learned counsel had pointed out that, the consignment was despatched through a transporting agent and the fact that the consignment contained goods sent only as 'purchase return', stands proved through the 'Credit Note' issued by the consignee. Therefore it is clear and evident that the transaction involved no sale attracting any tax liability. Consequently, it is contended that, the imposition of penalty attributing attempt at evasion of payment of tax, was not sustainable. 7. On the other hand, learned Government Pleader contended that, the non-fulfilment of the mandatory conditions in preparing the documents which accompanied the consignment itself gives rise to a suspicion regarding genuineness of the transport and attempt at evasion of payment of tax due. It is pointed out that, the revision petitioner had not succeeded in rebutting the suspicion by producing any acceptable materials in order to show that the consignment involved no tax liability. In this regard, learned Government Pleader had pointed out that the two invoices produced by the revision petitioner were found to be not acceptable, because it lacked endorsement of the border check post and since it had not tallied with the description, quantity and value involved in the consignment. 8. Section 47 (2) of the KVAT Act enables the Officer to detain the goods and to allow the transport only on furnishing Security, if he has got reasons to suspect that the goods under transport are not covered under proper and genuine documents (in cases where such documents are necessary) or that any person transporting the goods is attempting to evade payment of tax due under the Act. Therefore it is clear and evident that the Officer authorised is entitled to detain the goods and to demand security for two reasons. Therefore it is clear and evident that the Officer authorised is entitled to detain the goods and to demand security for two reasons. One being as to whether the goods under transport are not supported by proper and genuine documents (in cases where such documents are necessary). The next reason being the suspicion that the person transporting the goods is attempting to evade payment of the tax due under the Act. Going by scheme of Section 47, the detention has to be followed by an enquiry as contemplated under sub-section (5) and (6) of Section 47. Sub-section 6 stipulate that the Officer conducting the enquiry should serve notice on the owner of the goods and should give him an opportunity of hearing. After such enquiry if the officer finds that there has been an attempt to evade tax due under this Act (emphasis supplied) he shall, by order, impose on the owner of the goods a penalty not exceeding twice the amount of tax attempted to be evaded, as may be estimated by such officer. 9. It is pertinent to note that, there exists a vital difference between the provisions contained in the sub-sections (2) and (6) of Section 47. Sub-section (2) enables the detaining authority to detain the goods and to permit the transport only by furnishing security, for two reasons. One being that the transport is not covered by any proper and genuine documents (in case where such documents are necessary) and the other being there exists any reason to suspect that the person transporting the goods is attempting to evade payment of tax due under the Act. In contra distinction, sub-section (6) authorises the Enquiry Officer to impose penalty on the owner of the goods, only if such officer finds that there has been an attempt to evade the tax due under this Act (emphasis supplied). Therefore it is sine qua non that, for imposing penalty under Section 47 (6), the Enquiry Officer, after completing the enquiry, should arrive at a conclusive finding that there existed an attempt at evasion of payment of tax, at the time when the transport was made. 10. Therefore it is sine qua non that, for imposing penalty under Section 47 (6), the Enquiry Officer, after completing the enquiry, should arrive at a conclusive finding that there existed an attempt at evasion of payment of tax, at the time when the transport was made. 10. In a decision of this court to which one among us is the author, (C.K. Abdul Rehim J.) in Ranganathan D. V. Commercial Tax Inspector and another ( 2011 (2) KLJ 805 ) = ( 2011 (2) KHC 471 ), it is held that, the detaining authority is authorised to intercept and demand Security Deposit if he has reason to suspect that the person transporting the goods is attempting to evade payment of tax or the goods are not covered by proper and genuine documents (in case where such documents are necessary). But under Section 47(6) the Authorised Officer conducting the enquiry is empowered to impose penalty only if such Officer finds that there occurred an attempt to evade payment of tax due under the Act. It is further held that, the detention based on a reasonable suspicion regarding attempt to evade payment of tax or on the basis of lack of proper and genuine documents, shall be succeeded by an enquiry, the culmination of which should result in an adjudication as to whether there was actual attempt to evade payment of tax due under the Act. Therefore it is held that, even if there existed a reasonable suspicion regarding the attempt at evasion of tax, penalty can be imposed only after completing the enquiry, only if the Officer arrives at conclusive finding that such an attempt was actually there in existence at the time of the transportation. In other words, it was held that, even if the transport is not accompanied by proper and genuine documents in cases where such documents are necessary, penalty could imposed only when the Enquiry Officer arrives at a conclusive finding that the non availability of proper and genuine documents was with an intention to evade payment of tax. 11. Learned Government Pleader placed reliance on a Division Bench judgment of this Court in O.T.(Rev.) No. 129 of 2013 dated 28.11.2013 [M/s Haritha Cashews Vs. the State of Kerala]. 11. Learned Government Pleader placed reliance on a Division Bench judgment of this Court in O.T.(Rev.) No. 129 of 2013 dated 28.11.2013 [M/s Haritha Cashews Vs. the State of Kerala]. On the facts, it is also a case where the Delivery Note was not prepared by using double sided carbon, as mandated in Rule 58(16) of the KVAT Rules. It was observed that, the authorities in the said case have arrived at a conclusion that, when the Rules specifically indicates the manner in which the Delivery Note is to be prepared, failure to do so may result in some dealers using the same documents to transport more than one consignment, by suppressing the transaction. The Bench observed that, the Delivery Note has to be prepared by the dealer in accordance with the Rules specified in that behalf. If there is any violation of the Rules, there is always a suspicion that there is an attempt to evade tax. Relying on the said observation, it is contended by the learned Government Pleader that, the violation of the procedure mandated in the Rules can be taken as a reason for suspecting attempt to evade payment of tax. 12. We are in perfect agreement with the above said finding. As provided in sub section (2) of Section 47, if the transport is not covered by proper and genuine documents, that by itself can be a reason for suspecting attempt at evasion of payment of tax. If the Rules mandates that the documents should be in a particular form, the non compliance will render such document as not proper or genuine. Such a fault committed by the person transporting the goods is sufficient reason for the detaining authority to suspect evasion of payment of tax due and to detain the transport and also to demand Security Deposit. But as held in the Ranganathan's case (supra), the distinction between sub section (2) and sub section (6) of Section 47, necessitates a further requirement. The Enquiry Officer has to arrive at a finding that there was an attempt at evasion of payment of tax under the Act, involved in the transport, for ordering imposition of penalty. But as held in the Ranganathan's case (supra), the distinction between sub section (2) and sub section (6) of Section 47, necessitates a further requirement. The Enquiry Officer has to arrive at a finding that there was an attempt at evasion of payment of tax under the Act, involved in the transport, for ordering imposition of penalty. Therefore, scope of the enquiry contemplated under sub Sections (5) and (6) is to ascertain as to whether there was an attempt to evade tax by usage of the documents accompanied the transport, which were either not proper or not genuine. In other words, the enquiry envisages an adjudication as to whether the usage of the improper or bogus or manipulated documents for the transport was actually with any intention of attempting at an evasion of payment of tax due under the Act. 13. Further aspect to be considered is with respect to the burden in dislodging the suspicion regarding the attempt at evasion of payment of tax, which arise on the basis of the usage of the improper document or documents which are not genuine. It has to be accepted that, once the goods are detained based on a suspicion as mentioned above, it is the burden of the person who is transporting the goods to rebut the suspicion and to prove in the enquiry that, the improper documents happened to be used in the transport only because of an inadvertence or mistake; and that there existed no attempt at evasion of payment of tax. Therefore it can safely be held that, the burden of proving genuineness of the transport or to prove that there was no attempt at evasion of payment of tax at the time when the transport was effected, solely lies on the person who made the transport or on the owner of the goods, as the case may be. Definitely, in the enquiry, if the owner of the goods fails to discharge the said burden, an adverse inference can be drawn that the usage of improper documents or documents which are not genuine, was with an intention to make an attempt at evasion of payment of tax due under the Act. 14. Definitely, in the enquiry, if the owner of the goods fails to discharge the said burden, an adverse inference can be drawn that the usage of improper documents or documents which are not genuine, was with an intention to make an attempt at evasion of payment of tax due under the Act. 14. On analyzing facts in the case at hand, based on the legal principle enumerated as above, we notice that the interception was from the premises of a hired Transporter, with whom the revision petitioner had entrusted the goods for transport. The goods, at the time of interception, was not within the control of the consignor or who is the owner of the goods. The defect pointed out in the notice issued at the time of detention only indicate the irregularity that the Delivery Note was not prepared by complying the condition stipulated in Rule 58 (16) of the KVAT Rules. But from the Delivery Note itself it is evident that the consignment was made as a 'purchase return' and it is quite clear that the transporter will deliver the goods to the consignee along with a copy of the Delivery Note. The Delivery Note is a document issued by the Assessing Officer of the Commercial Taxes Department, which contains the serial numbers imprinted and it also contains the seal and signature of the Officer issuing the same. Therefore, the consignment at any rate cannot be suppressed from the Department, in the monthly return to be filed. Learned Government Pleader pointed out that, if the Delivery Note was not prepared by using double sides carbon, there is every possibility that the transaction will be suppressed in the monthly return or can be shown with a different quantity and value. So also it is pointed out that, in such case the same Delivery Note can be used for subsequent transports. 15. But, in the case at hand, the Delivery Note which accompanied the goods are in the hands of the transporter, upon which the consignor may not have any control. Under normal circumstances, the consignor cannot prevent the transporter from delivering the goods along with the Delivery Note to the consignee. 15. But, in the case at hand, the Delivery Note which accompanied the goods are in the hands of the transporter, upon which the consignor may not have any control. Under normal circumstances, the consignor cannot prevent the transporter from delivering the goods along with the Delivery Note to the consignee. Coupled with that, the revision petitioner in the present case had produced 'Credit Note' issued by the consignee, indicating that the goods consigned were received as 'purchase return' and that the consignee had properly accounted receipt of such goods. The above said aspects to a great extent would rebut the suspicion that the owner of the goods had no intention to make an attempt for evasion of payment of tax due on the transport; or that the transport in question involved no tax liability. Of course, as contended by the learned Government Pleader, the revision petitioner has not fully succeeded in proving that the goods forwarded as 'purchase return' were goods sold by the consignee into the state, to the revision petitioner. As found by the Enquiry Officer, the two invoices produced were not bearing endorsement of the border check Post and were not tallying in the numbers and quantity of the goods consigned as 'purchase return'. But that by itself cannot be taken as a reason to arrive at a conclusion that the owner of the goods was making an attempt at evasion of payment of tax. Input and output of the goods dealt with by the dealer will have to be reflected in the Books of Account, with respect to which it is not easy for the dealer to have manipulations, because of the KVATIS introduced for uploading of all transactions. It would have been a different case if the consignee has not received the goods or when he has not credited those goods received as 'purchase return'. 16. Therefore, we are of the opinion that, the review petitioner could have succeed in rebutting the suspicion through materials and circumstances. On the other hand, we are of the view that the materials relied upon by the Enquiry Officer to arrive at a finding that there was an attempt to evade payment of tax due under the Act, were not sufficient enough to arrive at such a conclusion. On the other hand, we are of the view that the materials relied upon by the Enquiry Officer to arrive at a finding that there was an attempt to evade payment of tax due under the Act, were not sufficient enough to arrive at such a conclusion. On an evaluation of the entire factual matrix, we cannot uphold the finding of the authorities that due to the mistakes contained in the documents which accompanied the goods or due to non-compliance of the mandatory requirements in preparing such documents alone, there existed an attempt to evade payment of the tax due. Hence, imposition of the penalty was not supported by an appropriate conclusion based on the relevant materials and considerations. 17. Consequently, the impugned order passed by the Tribunal dismissing the appeal filed by the revision petitioner is hereby set aside. The appeal before the Tribunal deserves merit and is hereby allowed to the extent of setting aside the order passed by the Intelligence Officer [Commercial Taxes, Kozhikkode] dated 07.04.2014 imposing penalty against the revision petitioner. The Security Deposit furnished by the Revision Petitioner is liable to be refunded. Hence we order refund of the Security if already adjusted or release of the Bank Guarantee if not realized.