Penalty in lieu of confiscation cannot be levied on a lorry owner absent a finding that he owned the goods.

Penalty in lieu of confiscation under section 42(3) and the connected rules could be levied only after enquiry and hearing, and only against the dealer transporting the goods or the owner of the goods under transport. The owner of the lorry was not liable merely because his vehicle was used for carriage or because the driver paid the amount. In the absence of any finding that he was the dealer or owner of the goods, the levy was unsustainable. The Tribunal's order was set aside and the matter remanded for fresh disposal.

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Issues: Whether penalty in lieu of confiscation under section 42(3) and the relevant rules could be collected from the owner of the lorry when there was no finding that he was the dealer in respect of, or the owner of, the goods under transport.

Analysis: Section 42(3) authorises seizure and confiscation of goods transported without the prescribed documents and contemplates an option to pay money in lieu of confiscation only after enquiry and hearing. The rules governing confiscation proceed on the footing that the affected person is the dealer transporting the goods or the owner of the goods. On that construction, the power to accept money in lieu of confiscation is confined to the dealer or owner of the goods, and not to the owner of the lorry merely because his vehicle was used for transport or because the driver paid the amount. The absence of a finding that the petitioner answered that description was fatal to the levy.

Conclusion: The collection of penalty from the petitioner could not be sustained in law, and the order of the Tribunal was set aside with remand for fresh disposal.

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