(1) Where the Senior Joint Commissioner; Joint Commissioner, deputy commissioner or Sales Tax Officer finds that a person or transporter has contravened the provisions of section 73, and such goods are not available for seizure under sub-section (1) of section 76, and a penalty is required to be imposed on such person or transporter under section 79, such authority shall serve a notice in Form No. 62 upon such person or transporter directing him to appear in person or through his agent, as the case may be, and to show cause on the date and at the time and place specified in such notice why a penalty under section 79 shall not be imposed on him.

(2) The Senior Joint Commissioner; Joint Commissioner, deputy commissioner or Sales Tax Officer shall fix a date for hearing not less than fifteen days from the date of issue of the notice referred to in sub-rule (1):

Provided that the requirement of allowing fifteen days' time in the notice for showing cause may, at the request of the person or transporter, be waived by the authority who serves such notice.

(3) The person or transporter may be directed-

(a) to produce the bill, invoice, consignment note or document of like nature issued by the consignor or owner of such goods and catalogue, if any, of the manufacturer of the goods showing therein the retail sale prices fixed by such manufacturer in respect of such goods in West Bengal;

(b) to furnish a declaration in respect of the aggregate retail price of such goods at which these are likely to be sold in West Bengal.

(4) The person or transporter on whom notice has been served under sub-rule (1) may prefer any objection to the imposition of penalty.

(5) After considering the objection, if any, preferred by the person or transporter or after considering the document and evidence including the catalogue showing the retail sale price referred to in clause (a) of sub-rule (3) in respect of such goods that may be produced and also the prevailing market price referred to in clause (30A) of section 2 of such goods, the authority referred to in sub-rule (2) shall, for the purpose of imposition of penalty, pass a reasoned order, in writing, determining the fair market value referred to in clause (14A) of section 2, of such goods transported in contravention of the provisions of section 73 and where such goods are not available for seizure under sub-section (1) of section 76, and impose a penalty on such person or transporter in accordance with the provisions of section 79:

Provided that where no prevailing market price in respect of such goods is available and where such goods are not available for seizure under sub-section (1) of section 76, the authority referred to in sub-rule (2) shall, after causing necessary enquiry and considering the document and evidence including the catalogue showing retail sale price referred to in clause (a) of sub-rule (3) in respect of such goods that may be produced, pass a reasoned order, in writing, determining the fair market value, as referred to in clause (14A) of section 2, of such goods transported in contravention of the provisions of section 73:

Provided further that where the fair market value, determined under this sub-rule, of such goods is found to be lower than the aggregate retail price of such goods as declared under clause (b) of sub-rule (3), the aggregate retail price of such goods as declared under clause (b) of sub-rule (3) shall be deemed to be the fair market value :

Provided also that in determining the fair market value of such goods, the authority referred to in this sub-rule shall take into account-

(a) the cost of transport of such goods;

(b) tax, duty or any other amount charged in respect of such goods;

(c) the amount of profit likely to be earned on sale of such goods in West Bengal,

which are normally added by a seller to the cost of the goods in fixing the sale price of the goods.

(6) When a penalty is imposed under sub-rule (5) by the authority referred to in sub-rule (2), such authority shall serve upon the person or transporter a notice in Form No. 63 directing him to pay the amount of penalty so imposed by the date specified in such notice, and shall also fix a date by which the receipted challan in proof of such payment shall be produced before him.

Explanation.- the purpose of this rule, the word "transporter" includes carrier or transporting agent.