Provisions relating to penalty in a taxing statute are substantive in character and cannot be considered as part of procedural law unless expressly adopted.

( 1 ) BOTH the writ petition and the Sales Tax Revision Petition referred to above can be disposed oi together. The few facts necessary for the purpose are as follows. For the assessment year 1964-65, a tax of Rs. 14,332-80 was determined as payable by the petitioner under the Central Sales Tax Act, 1956, hereinafter referred to as the Central Act. On 20-6-1968 the Commercial Tax Officer, raichur, issued a notice to the petitioner demanding the said tax together with a penalty of Rs, 10,104-36 for default in payment of the said Tax. The penalty, according to the Officer, had accrued under S. 13 (2) (b) of the Mysore Sales Tax Act, 1957, hereinafter referred to as the State Act.

( 2 ) THE petitioner paid only the tax and did not pay the penalty demanded. Because of non-payment of the penalty, the Commercial Tax Officer filed an application under S. 13 (3) (b) of the State Act before the Munsiff-Magistrate at Raichur, for the recovery of the sum due as penalty, as if it was a fine imposed by the Court. The case in question is Crl. Case No. . 264/iv/1969. The Court issued a distress warrant for the recovery of the said sum. Aggrieved by that the petitioner approached this Court under S. 13 (4) of the State Act, in STRP. No. 226/9, on 28-5-1969. Subsequently on 23-1-1970, in respect of the same matter, he has preferred WP. No. 345/70, as it was felt that the question of constitutional validity of the recovery proceedings had arisen. After the writ petition was entertained, it was submitted on behalf of the petitioner that STRP. No. 22/69 might be dismissed as not pressed.

( 3 ) BEFORE adverting to the contentions on merits advanced on behalf of the parties, it is convenient to dispose of a preliminary objection taken on behalf of the respondent. The argument is that the writ petition has been filed nearly one and half years after the impugned notice of demand dated 20-6-1968 was served on the petitioner and as such the petition suffered from inordinate delay. Consequently, it was not a ftt case for interference under Art. 226 of the Constitution of India. We are not inclined to accept this contention. It is to be seen that the recovery proceedings are still pending. The petitioner had approached this Court in STRP. No. 22/1969 well in time. During the pendency of the said revision petition, he has preferred the writ petition raising an additional ground regarding the validity of the recovery which would be otherwise unavailable to him if he pursued the revision petition. In these circumstances, the writ petition in a sense is a petition in continuation of the proceedings earlier instituted. For all these reasons, we do not think that the writ petition should be rejected on the ground of inordinate delay.

( 4 ) IN order to appreciate the contentions urged, it is necessary to set out the relevant provisions of the Central and the State Acts. The Central act was amended in certain respects with retrospective effect by the central Sales Tax (Amendment) Ordinance, 1969 (Ordinance No. 4 of 1969 ). This Ordinance was subsequently replaced by the Central Sales Tax (Amendment) Act, 1969 (Act No. 28 of 1969 ). The relevant portion of s. 9 (3) of the Central Act prior to amendment is:"the authorities for the time being empowered to assess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of India and subject to any rules made under this Act, assess, collect and enforce payment of any tax, including any penalty, payable by a dealer under this Act in the same manner as the tax on the sale or purchase of goods under the general sales tax law of the State is assessed, paid and collected; and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the provisions of such law, including provisions relating to returns, appeals, reviews, revisions, references, penalties and compounding of o