M. C. AGARWAL, J. - (1.) This writ petition under article 226 of the Constitution of India challenges the levy of penalty levied on the petitioner under section 13-A of the U. P. Sales Tax Act, 1948. Counter and rejoinder affidavits have been exchanged and as agreed by the parties, the writ petition has been finally heard at the admission stage. The petitioner's contention is that it is a transporter. One M/s. Jamuna Enterprises of Delhi had handed over three consignments of cotton yarn consisting of 5, 15 and 10 bales respectively for transport to Kathmandu and to be handed over to M/s. Ytax Traders, M/s. Chipalu Traders and M/s. Yangla Galicha Udyag, Kathmandu, respectively. The said M/s. Jamuna Enterprises had handed over its bills Nos. 62, 61 and 60 which were dated January 3, 1992. The petitioner prepared goods receipts Nos. 30075, 30074 and 30073 in respect of those goods. On January 2, 1992, another client of the petitioner, namely, Goenka Traders of Lakshmi Bazar, Cloth Market, Delhi had also given a consignment of 103 bales of cotton yarn to the petitioner for transporting it to M/s. Chhangla Carpet Industries, Kathmandu, vide their bill No. 976, dated January 1, 1992. In respect of this consignment the petitioner prepared goods receipt No. 30014, dated January 2, 1992. It is contended that the aforesaid consignments of 30 bales handed over to the petitioner by M/s. Jamuna Enterprises was loaded in truck No. USM-8576 for transport to Kathmandu but by mistake the clerk of the petitioner handed over only one GR No. 30014 to the driver which was in respect of the consignment of Goenka Traders. In view of this mistake in the remarks column of the challan the number of bales was wrongly mentioned as 103. The said truck reached Transport Nagar check-post at Ghaziabad on January 7, 1992 and the driver of the truck handed over all the papers to the officers concerned for preparation of form 34. On checking, the officer concerned found that the goods loaded in the truck were different from those mentioned in the papers and hence he issued a show cause notice dated January 7, 1992 to the driver of the truck. The petitioner then appeared before the Sales Tax Officer and filed its explanation pointing out that by mistake a wrong set of papers was handed over to the driver, and the goods actually belonged to M/s. Jamuna Enterprises who had purchased the same from M/s. Ajanta Textiles Mills, Delhi. It was pointed out in the reply that by mistake the papers that were received from Goenka Traders were handed over to the driver of the truck. The Sales Tax Officer, Transport Nagar check-post, however seized the goods under section 13-A (4) and demanded a cash security of Rs. 89,200, a copy of the seizure order has been annexed as annexure 3 to the writ petition. According to the petitioner since the goods were to be transported to Kathmandu urgently, the petitioner deposited the security and transported the goods of Nepal where they crossed the exit check-post of Sanoli Maharajganj on January 17, 1992. The goods handed over to the petitioner by M/s. Goenka Traders consisting of 103 bales of cotton yarn were separately transported to Kathmandu, vide G. R. No. 30014. According to the petitioner, the goods in question, i. e. , 30 bales of cotton yarn were duly traceable to a bona fide dealer, namely, M/s. Jamuna Enterprises yet the Sales Tax Officer, Transport Nagar check-post, issued a notice for levy of penalty under section 13-A (4) of the Act and ultimately levied a penalty of Rs. 89,200. The petitioner filed an appeal before the Assistant Commissioner (Judicial), Sales Tax, which failed. A further appeal to the Sales Tax Tribunal also failed. The petitioner has now filed the present writ petition. The petitioner's contention is that there was no reason whatsoever for the levy of penalty under section 13-A (4) of the Act. In the counter-affidavit it has been stated on behalf of the respondents that on January 7, 1992, the aforesaid truck No. USM-8576 came to the check-post and applied for the issuance of a transit pass in form 34 declaring that the goods were to move from New Delhi to Nepal. The driver had with goods receipts Nos. 30088, 30054 and 30074 in respect of 96 packets. On physical checking it was found that the goods which were stated pertaining to G. R. No. 30074 did not tally with the description given in the said G. R. The respondents have stated in the affidavit that G. R. No. 30074 declared the movement of 30 bales out of a total of 103 bales of cotton yarn. Then the respondents have stated how the goods were different from the description in the G. R. and the name of the manufacturer of the goods was also different. It is stated that the check-post, Transport Nagar, is situated approximately 4 kms away from the border inside the State of U. P. and in between the check-post and the border various parties have established their offices to evade sales tax. It is admitted that in its reply to the show cause notice the petitioner had submitted that the 30 bales of cotton yarn which were loaded in the aforesaid truck and which were detained actually pertain to other G. Rs. Nos. 30073, 30074 and 30075 and that due to mistake of the clerk G. R. No. 30014 was given to the driver in place of G. R. No. 30074. It is admitted that on January 15, 1992, the other consignment of 103 bales of cotton yarn booked by M/s. Goenka Traders passed out of the said check-post in truck No. MKM-1479 for which a transit pass in form 34 was duly issued. It is further stated that the deputed goods consigned from U. P. and the consignment was not covered by any document such as bill, invoice, challans as well as memo, etc. , and that the actual selling dealer was unidentified. On these averments the seizure of the goods and the levy of penalty is justified by the respondents. Under section 13-A (1) an authorised officer has power to seize any goods - (i) which are found in the dealer's place of business or vehicle or any other building or place or; (ii) which such officer has reason to believe to belong to the dealer and which are found in any place of business or vehicle or building or place but are not accounted for by the dealer in his accounts or registers or other documents maintained in the course of his business. Under section 13-A (1-A) the authorised officer has the power to seize goods if he has reason to believe that the goods found in any vehicle, building or place are not traced to any bona fide dealer or that it is doubtful if such goods are properly accounted for by any dealer in his accounts, registers or other documents maintained in the course of his business. Sub-section (4) of section 13-A provides for the levy of penalty. It says that if such authority, after taking into consideration the explanation, if any, of the dealer, or as the case may be, the person in-charge and giving him an opportunity of being heard, is satisfied that the said goods were omitted from being shown in the accounts, registers or other documents referred to in sub-section (1) it shall pass an order imposing a penalty not exceeding 40 per cent of the value of such goods as he deems fit. A reading of the impugned order dated September 30, 1992, by which the Sales Tax Officer, Transport Nagar check-post, has levied the penalty of Rs. 89,200 would show that the officer was thoroughly confused and was oblivious of the default for which a penalty can be levied under section 13-A (4) of the Act. He has recorded no finding that the goods in question, i. e. , 30 bales of cotton yarn were not recorded, in the accounts or registers of the petitioner-transporter or of M/s. Jamuna Enterprises to whom according to the petitioner the goods belonged. He has also not recorded any finding that M/s. Jamuna Enterprises of Delhi was not traceable or having been traced had denied the ownership of the goods or having handed over the same to the petitioner for transport. He has laid stress on the fact the the description of goods as mentioned in the papers accompanying the consignment was different from the actual goods found physically present in the vehicle. In the circumstances, explained by the petitioner it was bound to be so when by mistake a wrong set of papers was handed over to the driver. It is not the case of the department that after the goods were detained, the correct set of papers was not produced. Admittedly form 34, i. e. , a transit pass, was issued in respect of the same goods from this very check-post on the basis of which they were taken out of the entry check-post. At the time of the levy of penalty the petitioner had contended that it has duly transported the goods outside India but the Sales Tax Officer has expressed doubt about it stating that the letter of the Sales Tax Officer of the exit check-post does not make it clear whether the same 30 bales passed out. This is nothing but trying to find out some pretext for the levy of penalty. As a matte of fact the levy of penalty under section 13-A (4) the circumstances, whether the goods actually passed out of the exit check-post or not was irrelevant. If the goods were not taken out then the penalty should have been levied under of the Act, and for such a default section 13-A (4) was wholly inapplicable. The learned first appellate authority has also repeated the points made out by the Sales Tax Officer and so is the case with the Tribunal. They have not analysed the provisions of section 13-A (1), 13-A (1-A) and 13-A (4) to find out the nature of default for which penalty can be levied under section 13-A (4 ). The learned Tribunal has, like the Sales Tax Officer, mentioned that the papers accompanying the consignment contained different particulars. As pointed out earlier the petitioner's explanation was that it happened because of a mistake. The Tribunal has not recorded any finding that there was no such mistake as alleged by the petitioner and that in fact no papers connected with 30 bales of cotton yarn existed or were produced before the authorities concerned. The Tribunal has also mentioned that the explanation that a wrong set of papers was handed over to the driver of the truck was not set up before the Sales Tax Officer. This contention is not correct. A copy of the affidavit dated January 10, 1992, filed before the Sales Tax Officer, Transport Nagar check post is at page 28 to 33 of the paper book in which such an explanation was offered. The learned Tribunal has also mentioned that the papers required under rule 84 (3) of the U. P. Sales Tax Rules, 1948, were not accompanying the consignment. As stated above, this was not because no such papers existed but because a wrong set of papers was handed over to the driver of the truck and the correct set of papers was left behind. In any case, for such a default no penalty under section 13-A (4) could be levied. If it is taken that the petitioner was trying to carry the goods without a proper set of papers then the penalty should have been levied under section 15-A (1) (o) read with section 28-A. The learned Standing Counsel also laid stress on the facts relied upon by the authorities below and contended that the description of the goods was different. This was properly explained by the petitioner and therefore, was of no consequence. It was then contended that the petitioner should have produced the owner of the goods. It is true that it would have been better if the petitioner had produced M/s. Yamuna Enterprises in support of its case. There is, however, no specific legal requirement to do so. The petitioner is merely a transporter and it had disclose the name and address of the consignor as well as consignee. Under sub-section (1-A) of section 13-A the requirement is that the goods should not be traced to any bona fide dealer or that it is doubtful if such goods are properly accounted for by any dealer in his accounts, registers or other documents. The use of the word "traced" is significant and implies a duty on the part of the authorities concerned to trace the dealer to whom the transporter contends the goods to belong. The petitioner having produced the concerned papers and having informed the department of the name and address of the consignor, who being at Delhi was not very far from the check-post, it was the duty of the check-post authorities to attempt to contact M/s. Jamuna Enterprises and it was only if the party could not be traced or having been traced denied delivered the consignments to the petitioner, that it could be held that the goods cannot be traced to any bona fide dealer. No such attempt has been made and as a matter of fact no specific finding has been recorded that it has not been established that the goods were handed over to the petitioner for transport by M/s. Jamuna Enterprises, Delhi. In view of the above discussion, I find that it was a patent case of the misuse of the power of seizure and levy of penalty. This writ petition, therefore, has to be allowed. The writ petition is allowed. The impugned order dated September 30, 1992, the first appellate order dated February 4, 1993 and the order dated August 19, 1993, passed by the Sales Tax Tribunal, Ghaziabad, in second Appeal No. 303 of 1993 are hereby quashed. The petitioner will get its costs of this writ petition from respondent No. 2 which are assessed at Rs. 2,500. The respondent No. 2 is directed to refund to the petitioner the sum of Rs. 89,200 deposited by it as security within 15 days of the date the petitioner produces before him a certified copy of this order with simple interest at the rate of 15 per cent per annum from the date of deposit to the date of refund. Writ petition allowed. .;