JUDGMENT : Ritu Bahri, C.J. The revisionist has challenged the penalty order passed by the Deputy Commissioner (Assessment)-2, Commercial Tax, Haridwar, and the judgment of the Commercial Tax Tribunal, Bench Dehradun, dated 25.11.2014, whereby after setting-aside the judgment passed by the First Appellate Authority, imposed a penalty of Rs.10.00 lakhs on the revisionist. 2. The revisionist is a manufacturer of rubber tires. On 24.09.2013, Mobile Squad Authority, Amarpur, Haridwar have checked the Vehicle No.HP72 3524, and on inspection, found that the transported goods rubber by Farm-16 No.-U.K. VAT/K-2010-2440358, through M/s East India Transport Agency, 20B Abdul Hameed Street, Kolkata, by Bilti No.-6169578 (in two copies), bill no.1376/ date 17.08.2013 of M/s Mysoor Polymers and rubber product Ltd., 20B K.R.S road, Meta Street Pot Mysool, total value of Rs.35,10,000-00 was carried on. The driver of the vehicle was having old series form-16. On account of that, the trip sheet could not be prepared. For,-16 old K series was declared obsolete on 20/02/2013. So on the ground of above fact the mobile squad officer Amarpur issued show cause notice to assessee, in compliance of it the assessee filed its reply. The above imported material was given to the M/s Mysoor polymers and rubber product for job work, which was being return by above firm M/s Mysoor Polymer without doing any job work on account of the coming into end the agreement. The above goods is neither purchase nor sale, only being return without any job work on old form by mistake. There is no intention of evasion of tax in it. The driver of the vehicle could not produce the trip-sheet and Form 16 used by the transporter, was old form. 3. Thereafter, a notice was issued under Section 48(8) of the Value Added Tax Act, and ex parte penalty order was passed against the assessee. 4. The stand taken before the Appellate Authority by the revisionist was that previously they had sent an import declaration form to a dealer with whom they do the job work. The import declaration form was with M/s Mysoor Polymer and Rubber Product Ltd. When M/s Birla Tyres, demanded return of its goods, the above firm sent the goods using the old form-16 No.U.K. VAT K2010, No.2440358. The dealer returning the goods and transporter was not having knowledge that K series form-16 declared obsolete. The import declaration form was with M/s Mysoor Polymer and Rubber Product Ltd. When M/s Birla Tyres, demanded return of its goods, the above firm sent the goods using the old form-16 No.U.K. VAT K2010, No.2440358. The dealer returning the goods and transporter was not having knowledge that K series form-16 declared obsolete. When the trip sheet was being prepared at the border of Uttaranchal, the trip sheet could not be prepared because of K series form-16. The case of the revisionist was before the Appellate Authority that they were importing the goods along with the requisite documents. They had already filed new form-16 No.2767947 in place of old import declaration form. 5. The Appellate Authority, after hearing and going through the record, gave a finding that the present revisionist was a bonafide dealer and the goods in question were accounted in the accounts books. The assessing authority has not raised any objection regarding the above said facts. Hence, as per Section 43(5), two conditions which exist for imposing the penalty are not made out. The driver of the vehicle was having all the requisite documents of the goods. 6. The Appellate Authority referred to the judgment in the case of Commissioner of Sales Tax vs. M/s R.K. Enterprises, 2006 NTN Vol. 30 All., dated 03.01.2006, where it has been held that merely because Form-31 was declared obsolete, an inference cannot be drawn that any attempt was made to evade the tax. In that case, there was a challan, gate pass and Form-31, though were obsolete, were attached with the documents. In the above said background, the imposition of penalty was found not to be correct. 7. On the second issue, reference has been made to the judgment in the case of M/s Malhotra Iron Store vs. CST, 1996 UPTC Page 33 and M/s Show Scot Distilleries Pvt. Vs. STO, 1983 UPTC 387, wherein it has been held that if the goods are of the bonafide dealer, and secondly, if the goods are recorded in the accounts book, then there is no case for imposition of penalty. 8. STO, 1983 UPTC 387, wherein it has been held that if the goods are of the bonafide dealer, and secondly, if the goods are recorded in the accounts book, then there is no case for imposition of penalty. 8. In the present case, against the judgment of the Appellate Authority dated 10.03.2014, the Revenue went in appeal, and vide impugned order dated 25.11.2014, the Tribunal set-aside the order passed by the Appellate Authority, and amount of penalty of Rs.10.00 lakh has been imposed by modifying the order passed by the Tax Assessment Officer, dated 13.01.2014. 9. The Tribunal proceeded to examine the facts of the case. The case setup by the revisionist-assessee M/s Birla Tyres was that they used to sent the raw material to Mysore for manufacturing of rubber tube on job work basis. The material which was sent to Mysore, no job work was done on that material, and it was being brought back without use. It was the case of the assessee before the Tribunal that the goods in question, neither purchased, nor was a case of sale. The goods were sent back on the old import declaration form (Form DCI) from the firm doing job work in Mysore, in which, no intention of tax evasion was vested. The provisions of Section 48(8), in this backdrop are not attracted in the present case. 10. Before imposing penalty under Section 48(8) of the Act, the Tax Assessment Officer has to be satisfied that the goods were imported in contravention of Section 48, is an attempt to evade assessment or payment of tax due or likely to be due under the Act. In this backdrop, the Tribunal, thereafter, proceeded to examine the alleged Declaration Form (Form DVI) of the import to the officer of the Trade Tax Department. The Import Declaration Form (Form XVI) was not in force, and its legal position will be like a waste paper, and in this backdrop, the Tribunal held that the trader had made the open contravention of the provisions of Section 48(2). The Tribunal held that under Section 48A, the Import Declaration Form has to be given by the importer duly filled in and signed before the import of goods to the consignor. Then, this form has to be given to the Transporter, and on that basis, the Transporter has to prepare the trip-sheet under Section 48A. The Tribunal held that under Section 48A, the Import Declaration Form has to be given by the importer duly filled in and signed before the import of goods to the consignor. Then, this form has to be given to the Transporter, and on that basis, the Transporter has to prepare the trip-sheet under Section 48A. Only then, import of goods will be in a lawful manner. There is no provision in the Uttarakhand Value Added Tax Act, 2005 to produce new prevailing import declaration form before the Inquiry Officer, and hence, subsequent new declaration form produced by the assessee, along with his reply to the show-cause notice, cannot be a ground not to impose penalty on the assessee. 11. Thereafter, the Tribunal proceeded to examine the issue whether there was an intention of the trader to evade tax by committing violation of Section 48. The Tribunal, thereafter, proceeded to examine order of penalty under Section 48(8) by the Assessing Authority. 12. The Tribunal observed that, in the present case, no account books were produced for verification, and hence, the intention of the trader was to evade tax. The trip-sheet has also not been prepared under Section 48(8), and this was the responsibility of the importer-trader that with respect to the transportation, in question, he had to produce relevant evidence before the Assessing Authority regarding the transaction in question, and finally, the Tribunal held that there was sufficient ground for imposing penalty, as the truck importing goods for the respondent-trader along with invalid/ out of date Import Declaration Form (Invalid Form XVI) was seized by the Flying Squad, and trip-sheet under Section 48A was not prepared. In this backdrop, the Tribunal imposed penalty of Rs.10.00 Lakhs upon the assessee. 13. After perusing the order of the Tribunal, it is worth highlighting that imposition of penalty is on the ground that the trader was importing the goods with an import declaration form, which was invalid Form-XVI, and trip-sheet under Section 48A had not been prepared. 14. Learned counsel for the revisionist has referred to the judgment of the Hon’ble Supreme Court in the case of State of Rajasthan vs. D.P. Metals, 124 STC 611 (SC), on the proposition that before imposing penalty under the Rajasthan Sales Tax Act, the Hon’ble Supreme Court held that an opportunity of hearing should be given. 14. Learned counsel for the revisionist has referred to the judgment of the Hon’ble Supreme Court in the case of State of Rajasthan vs. D.P. Metals, 124 STC 611 (SC), on the proposition that before imposing penalty under the Rajasthan Sales Tax Act, the Hon’ble Supreme Court held that an opportunity of hearing should be given. Further, if the false and forged documents are produced, then it would should mens rea that there was an attempt to hide the truth. The Hon’ble Supreme Court held that if there is a provision of imposition of penalty of 30%, which is the maximum, lower penalty can also be levied. 15. Learned counsel has, thereafter, referred to the judgment of the Allahabad High Court in the case of M/s Balaji Timbers and paints vs. Commissioner, Commercial Tax, U.P., 2010 NTN (Vol. 43) -53 (Alld.). This judgment applies to the facts of the present case, where also a vehicle also checked, and an Import Declaration Form (Form 38) was not found along with the goods, which was, however, produced later on with the explanation that the vehicle transporting goods had broken down and in the absence of the driver, the vehicle had been checked. Subsequently, Form 38 and bills were produced after issuance of the show-cause notice along with the affidavit of driver and mechanic. The High Court held that the assessee-revisionist had produced the bills as well as Form 38, which were being not being disputed by the respondent/ department. It was not the case of the respondent-department that Form 38, so produced, was fake and fictitious, and in this backdrop, the High Court held that seizure of the goods to the extent mentioned in Form 38 was not legal and valid, and the goods, which were transported against Form 38, were released without furnishing any security. 16. Learned counsel for the revisionist has, thereafter, referred to the judgment of the Allahabad High Court in the case of Castrol India Ltd. & another vs. Commissioner, Commercial Tax, 2012 NTN (Vol. 49)-202 and the judgment of the Commercial Tax Tribunal, Uttarakhand (Haldwani Bench) in the case of Narendra Singh, C/o Gati KWE Pvt. Ltd. vs. Commissioner, Commercial Tax, U.K, 2013 NTN (Vol.52)-75 (Tribunal). 49)-202 and the judgment of the Commercial Tax Tribunal, Uttarakhand (Haldwani Bench) in the case of Narendra Singh, C/o Gati KWE Pvt. Ltd. vs. Commissioner, Commercial Tax, U.K, 2013 NTN (Vol.52)-75 (Tribunal). Both the cases dealt with the same issue that while importing goods without Import Declaration Form under the Uttar Pradesh Value Added Tax Act, 2008, the goods were seized on the sole ground that the goods were not accompanied by the Import Declaration Form (Form 38), and in response to the show-cause notice, the party produces necessary documents so as to remove the discrepancy, if any, found at the time of checking, the authorities are legally bound to consider the same before ordering for the seizure of the goods, and the direction was given to release the goods without any security. 17. Learned State Counsel has referred to a Division Bench judgment of this Court in the case of Commissioner, Commercial Tax, Uttarakhand, Dehradun vs. M/s Kama Metal & Alloys Pvt. Ltd., Village Raipur, Bhagwanpur, Roorkee, CTR No.07 of 2017, dated 09.04.2021, and has argued that this Court has already considered the provisions of the Uttarakhand Value Added Tax, 2005, with respect to checking done by the Mobile Squad of the Commercial Trade Tax Department. 18. The Division Bench, while examining Section 48 of the VAT Act, has held that Sections 48 and 65 of the VAT Act, mens rea is not intended by the legislature for imposing penalty. For imposing penalty, the breach of tax was enough. In case the goods were not accompanied with the required Declaration Form and Trip Sheet, the penalty is imposed, then it is justified as per the tax law. The Division Bench had set-aside the judgment dated 13.07.2016, passed by the Commercial Trade Tax Tribunal in Second Appeal No.47 of 2016, and the judgment dated 10.09.2015, passed by the Joint Commissioner (Appeal), Commercial Tax in First Appeal No.835 of 2015. 19. Learned State Counsel has argued that the present case has to be examined in the light of the provisions of the Uttarakhand Value Added Tax Act, 2005, and Section 48 of the Act. 19. Learned State Counsel has argued that the present case has to be examined in the light of the provisions of the Uttarakhand Value Added Tax Act, 2005, and Section 48 of the Act. The provisions of Section 48(2) of the Act relates to the goods which are to be consigned by road, and under Section 48(2)(a) and (b) of the Act, the importer of the goods from outside the State has to furnish to the consignor the declaration in the prescribed form in duplicate duly filled in and signed by him. 20. Section 48(2)(a) and (b) are as follows:- “(a) The importer shall furnish to the consignor the declaration in the prescribed form in duplicate duly filled in and signed by him, and the owner or a person duly authorized by such owner or the driver or person-in-charge of a vehicle or of goods in movement, as the case may be, shall carry with him the copies of such declaration duly verified by the consignor in the prescribed manner together with such other documents as may be prescribed and shall produce the copies of such declaration and such documents if so required by an officer authorized under sub-section (1) or sub-section (2) of section 42 at any place. (b) The importer shall preserve the copies of declaration and other documents delivered to him or his agent under clause (a) for such period as may be prescribed and produce them before the assessing authority in a manner and within a time as may be prescribed by the Commissioner.” 21. Thereafter, if the search is conducted under Section 48(6) of the Act, and proper and genuine documents are not with the driver then till the inquiry is made, the person is not allowed to part with the goods in any manner. As per Section 48(7), once the goods are seized under Section 48(6), all steps are to be taken for their safe custody. Finally, under Section 48(8), it is the Assessing Officer, who has to take into consideration the explanation, if any, of the owner or the person duly authorized by such owner or the driver or person-in-charge of a vehicle. After giving opportunity of hearing, if the Assessing Officer is satisfied that the goods are in contravention of the provisions of this Act, then it shall pass an order imposing penalty not exceeding 40% of the value of such goods. After giving opportunity of hearing, if the Assessing Officer is satisfied that the goods are in contravention of the provisions of this Act, then it shall pass an order imposing penalty not exceeding 40% of the value of such goods. 22. The language of Section 48(8) of the Act is very clear. An opportunity of hearing is to be given, and secondly, while giving opportunity of hearing, if relevant documents are produced, and the Assessing Officer is duly satisfied that the explanation given by the transporter, or the person authorized by the owner of the goods, an attempt was made to evade the tax, only then penalty is to be imposed, and the penalty has not to exceed 40% of the value of the goods. The language of Section 48(8) is very clear that the Assessing Officer has to give opportunity of hearing, and then give an order on the basis of evidence given by the owner, or the person duly authorized by the owner of the goods or the driver. 23. The provision of Section 48(8) gives an opportunity to the Assessing Officer to apply its mind to the evidence before it. If the evidence shows that no attempt to evade tax was made, then there is no occasion to impose penalty or seize the goods. Hence, the judgment of the Division Bench dated 09.04.2021, passed in CTR No.07 of 2017, where it has been observed that in Section 48, there is no provision for examining the mens rea of the transporter of goods for imposing penalty, is not correct. Hence, the judgment of the Division Bench dated 09.04.2021, passed in CTR No.07 of 2017, where it has been observed that in Section 48, there is no provision for examining the mens rea of the transporter of goods for imposing penalty, is not correct. Section 48(8) of the Act reads as under:- “(8) If such assessing officer, after taking into consideration the explanation, if any of the owner or a person duly authorized by such owner or the driver or person-in-charge of a vehicle or of goods in movement as the case may be and after giving an opportunity of being heard is satisfied that the goods were imported or abetted to import in contravention of the provisions of this section in an attempt to evade assessment or payment of tax due or likely to be due under this Act, it shall pass an order imposing penalty not exceeding forty percent of the value of such goods involved or three times the tax leviable on such goods involved or three times the tax leviable on such goods under any of provisions of this Act, whichever is higher. The order of such penalty shall be properly served.” 24. The very fact that when the goods are seized as per the provisions of Section 43 of the VAT Act, the provisions of Section 48 would require to be examined, which deals with the power to seize goods. Even in Section 43(5), where an order of penalty has to be passed, an opportunity of hearing has to be given, and the officer has to be satisfied that there was an attempt to willfully not show the goods in accounts, register and other documents, and only then the penalty has to be imposed not exceeding 40% of the value of goods. After seizure of the goods under Section 43(4), the Assessing Authority has to give a show-cause notice as to why show-cause notice should not be imposed, and after giving notice, an opportunity of hearing as per Section 43(5) has to be given, and after examining the evidence, a finding has to be given whether there was willful attempt to evade tax. Hence, at the time of seizure of goods, and as per Section 48(8) with regard to import of goods into the State against declaration under Section 48(8), it is the Assessing Officer, who has to give notice, take reply, and give an opportunity of hearing, and if it is satisfied after giving opportunity of hearing that there was an attempt to evade tax, only then penalty is to be imposed. Hence, the very object of Section 48(8) would be defeated if despite given show-cause notice, and the correct reply, the penalty is imposed only on the ground that mens rea is not to be examined. In the facts of the present case, as per the order passed by the Tribunal, in Paragraph 20, it has been observed that on 23.09.2013, one truck importing the goods for the respondent-trader along with invalid/ out dated Import Declaration Form (Invalid Form XVI) had been seized by the Flying Squad and in that case also trip-sheet under Section 48A had not been not prepared. These are the only reasons for allowing the appeal. However, on issuance of show-cause notice, the trader had produced the valid declaration form (Form XVI). It is the case of the trader that he had sent the material to Mysore for job work. The job work was not done and the material was being brought back to the Uttarakhand without the job work. Hence, there was no payment made for the job work, and it was not the case of import of goods to the State of Uttarakhand. The goods, which were sent from Uttarakhand, were being brought back to Uttarakhand without job work. Hence, the nature of goods had not been changed, and it was the case of invalid declaration form, which was made basis to impose penalty. Once, after show-cause notice, the valid declaration form (Form XVI) has been produced with respect to the same evidence of sending the goods for doing of job work in Mysore, and getting them back without job work, for all intents and purposes, it was not the case of evasion of tax on import of goods. Hence, in this backdrop, the finding given by the Tribunal that there was an attempt to evade the tax, is not correct. Hence, in this backdrop, the finding given by the Tribunal that there was an attempt to evade the tax, is not correct. The ratio of the judgments M/s Balaji Timbers and paints vs. Commissioner, Commercial Tax, U.P., Castrol India Ltd. & another vs. Commissioner, Commercial Tax, and Narendra Singh, C/o Gati KWE Pvt. Ltd. vs. Commissioner, Commercial Tax, referred to by learned counsel for the revisionist apply to the facts of the present case, where it has been consistently held that when the vehicle was checked and the import declaration form was not found along with the goods, and was produced later with the explanation form, the seizure of goods and the demand of security was not justified. 25. Castrol India Ltd. & another vs. Commissioner, Commercial Tax, 2012 NTN (Vol. 49)-202, was a case where under the Uttar Pradesh VAT Act, 2008, the goods had been seized on the sole ground that the goods were not being accompanied by the Import Declaration Form (Form 38) under Section 50 of the Act. However, the original form was enclosed with the reply, and the Allahabad High Court held that the object of issuance of show-cause notice under Section 50(4) of the Act was to give to the party concern not only an opportunity to submit an explanation as to why the security may not be demanded, but also to explain why the goods may not be seized, and if in response to such a show-cause notice, the party produces necessary documents so as to remove the discrepancy, if any, found at the time of checking, the authorities are legally bound to consider the same before ordering for the seizure of the goods. 26. The ratio of the above judgment is applied to the facts of the present case that at the time of seizure, an invalid declaration form (Form XVI) was produced. However, subsequently, pursuant to the show-cause notice, the valid import declaration form (Form XVI) was produced, and it was not the case of the Assessing Officer that the valid import declaration form was fake, or there was discrepancy in the documents. 27. Hence, for all intents and purposes, the import declaration form submitted along with the reply has to be examined by the Assessing Officer under Section 48(8) before passing the order of seizure and penalty. 28. 27. Hence, for all intents and purposes, the import declaration form submitted along with the reply has to be examined by the Assessing Officer under Section 48(8) before passing the order of seizure and penalty. 28. In the present case, keeping in view the above judgments referred to by learned counsel for the revisionist, the revision(s) is being allowed, and the order of the Tribunal is being set-aside. 29. Pending application, if any, also stands disposed of.