ORDER :

(C. Praveen Kuma, J.)

1. The present writ petition came to be filed, seeking issuance of Writ of Certiorari declaring the proceedings of the Assistant Commercial Tax Officer, dated 16.06.2002, in G.I.No.7206/2000-01 and in Rc.No.JA4/741/2000-01 imposing penalty under Section 10-A of the Central Sales Tax Act, 1956 [for short, “the CST Act”] in respect of machinery brought for installation of Cold Storage from other States by furnishing Declarations in form ‘C’ which were incorporated in the Certificate of Registration under the CST Act, dated 08.11.2000 as illegal, improper and incorrect.

2. The facts, in issue, are as under:-

(a) The petitioner, who is a Dealer under the provisions of the State and Central Sales Tax Act, 1956, was issued a Certificate of Registration under the Central Act on 08.11.2000. The said Certificate includes several commodities namely Tamarind, Jaggery, General Goods, Garlic, Chillies, Soap Nuts and also a hand written Endorsement stating “machinery for own use” for purchase from dealers outside the State.

(b) It is stated that the petitioner constructed a Cold Storage Plant for maintaining and preserving the required temperatures for storage of various commodities. It is the case of the petitioner that pursuant to the Certificate of Registration, he was permitted to purchase various commodities noted therein for resale or for use in processing, at a concessional rate of Tax @ 4%, by furnishing ‘C’ declaration forms, from other States. It is said that the petitioner placed orders with the dealers, who are outside the State, for purchase of Refrigerator machinery, which includes cooling systems, by paying concessional rate of Tax, on furnishing the ‘C’ Declaration forms, issued by the second respondent. The said machinery is being purchased for installation in his Cold Storage Plant and accordingly issued ‘C’ Declaration forms to the selling dealers in other States.

(c) While things stood thus, the first respondent herein issued a Show Cause Notice on 25.01.2002 alleging that the petitioner has misused the Declaration Forms and thereby contravened the provisions of Section 10-A read with Section 8(3)(b) of the CST Act, attracting Penal action and proposed to levy penalty of Rs.12,29,544/- equivalent to 1½ times the differential tax. Objections came to be filed by the petitioner company on 05.02.2002. After considering the material available on record, an order came to be passed on 08.02.2002 levying penalty @ 1½ times the differential tax.

(d) It is the case of the petitioner that the grounds raised by the petitioner were never considered by the authority. Aggrieved by the Order, dated 08.02.2002, the petitioner filed W.P.No.5097 of 2002 before this Court, which was disposed on 01.04.2002 setting aside the Proceedings dated 08.02.2002, with a direction to the petitioner to place all the relevant material in support of its claim before the authority and that an order may be passed after giving an opportunity of hearing. Pursuant thereto, the petitioner herein appeared before the first respondent on 15.04.2002 and submitted his documents and arguments. However, the first respondent issued another Show Cause Notice on 16.05.2002, to which, the petitioner filed a detailed objections on 20.05.2002 questioning the penalty imposed. However, the first respondent issued the impugned proceedings dated 18.06.2002, confirming the penalty as done in the order dated 08.02.2002.

(e) Challenging the same, the present writ petition came to be filed stating that the order impugned is contrary to law laid down in the judgment of the Hon’ble Supreme Court.

3. A counter came to be filed by the first respondent, denying the allegations made in the affidavit filed in support of the writ petition. It is stated that against the penalty order, an appeal would lie under Section 19 of the A.P.G.S.T. Act to the Appellate Deputy Commissioner, Vijayawada. But, the petitioner without availing the statutory remedy filed the pres