77. Penalty for transporting goods in contravention of section 73 or section 81

(1)        If any goods are seized under section 76, the Commissioner may, by an order in writing, impose upon the transporter, carrier or transporting agent or any other person from whom such goods are seized or the owner of such goods, where particulars of the owner of such goods are available, or where there is no claimant for such goods at the time of such seizure, any person who subsequently establishes his claim of ownership or possession of such goods, after giving such transporter, carrier or transporting agent or person or owner, as the case may be, a reasonable opportunity of being heard, a penalty of a sum not exceeding fifty per centum of the value of such goods as may be determined by him in accordance with the rules made under this Act:

                    Provided that the sum of penalty that may be imposed under this sub sectionshall be--

                        (a) thirty per centum of the value of goods if the rate of tax leviable under sub-section (2) of section 16 in respect of such goods does not exceed four per centum;

                        (b) fifty per centum of the value of goods if the rate of tax leviable under sub-section (2) of section 16 in respect of such goods exceeds four per centum.

(2)        A penalty imposed under sub-section (1) shall be paid by the transporter, carrier or transporting agent or the person or the owner of goods, as the case may be, into an appropriate Government Treasury, by such date as may be specified by the Commissioner in a notice to be issued for this purpose, and the date so specified shall not be earlier than fifteen days from the date of the notice:

PROVIDED that the Commissioner may, upon application made by that transporter, carrier or transporting agent or the person or the owner of goods, as the case may be, for reasons to be recorded in writing, extend the date of payment of the penalty for such period as he may think fit.

(3)        The goods seized under section 76 shall be released in the prescribed manner on payment of the penalty imposed under sub-section (1).

(4)        If the penalty is not paid by the date specified in the notice issued under sub-section (2), the Commissioner may, in such manner and subject to such restrictions and conditions as may be prescribed, sell the goods so seized under section 76 in open auction and remit the sale proceeds thereof to a Government Treasury.

(5)        Notwithstanding anything contained in sub-section (3),-

(a)        the person to whom the Commissioner has, under sub-section (4) of section 3, delegated his power for revision under section 86, pending disposal of an application for revision against an order for imposition of penalty referred to in sub-section (1), or

(b)        the Commissioner, where there is no application for revision under section 86

may, for reasons to be recorded in writing, direct release of the goods seized under section 76 on such terms and conditions as he may deem fit.

(6)        Notwithstanding anything contained in sub-section (4), the Commissioner may, subject to such rules as may be made under this Act, where the goods seized under section 76 are-

(a)        of perishable nature, or

(b)        required to be used by a specified date,

sell such goods in open auction after the expiry of such period as he may consider fit and proper, if he is of opinion that such goods may become unusable or unsaleable on detention, or destroy such goods if the said goods become unusable before the sale in open auction actually takes place.

(7)        The proceeds of sale of the goods referred to in sub-section (4) or sub-section (6) shall be applied in the prescribed manner for payment in the following order of priority:-

(a)        first, for incidental charges, if any, relating to auction sale of such goods;

(b)        secondly, for expenses, if any, for storage of such goods,

(c)        thirdly, for penalty imposed under sub-section (1);

and the balance of the proceeds of sale, if any, shall be paid to the owner of the goods, or, if his particulars are not available, to the persons from whom such goods were seized under section 76, upon application within one year from the date of sale or within such further period as may be allowed by the Commissioner for cause shown to his satisfaction.