M/s Maharani Enterprises, Patna has filed this writ petition challenging the legality and correctness of the order dated 7th August, 2008 passed by the Commercial Taxes Tribunal, Bihar, Patna, whereby the Tribunal remanded the matter to the appellate authority.

2. The thrust of the argument of the senior counsel for the petitioner is that the notice does not specify whether it was issued under Section 20(1)(a) or 20(1)(b)of the Bihar Finance Act, 1981 (for short 'the Act') and for want of specific mention of that provision, the petitioner was deprived of actual charge necessitating an action of penalty. He would, thus, submit that the entire proceedings for initiation of penalty up to the order of the Tribunal are bad in law. The senior counsel would place reliance upon the decisions namely; (i) Y. Narayan Chetty and Anr. Vs. Income-Tax Officer, Nellore and Ors. (35 ITR 388), (ii) Commissioner of Sales Tax, U.P. Lucknow Vs. Anoop Wines (Sales Tax Cases 1988 Vol. 71), Commissioner of Income-Tax Vs. Smt. Kaushalya & Ors. (ITR 1995 Vol. 216 660) and (iii) an unreported decision of this Court in the case of M/s Bana Glass and Crockeries House Vs. The State of Bihar and Ors. (C.W.J.C. No. 12795 of 2004) dated 8th October, 2004.

3.. We do not deem it necessary to deal with the authorities cited by the senior counsel as the principal issue that needs to be considered by us is: whether the facts and circumstances of the case justify bypassing the statutory remedy under Section 48 of the Act. A brief survey of few provisions of the Act will show that it is a self-contained code and it provides complete machinery for the redressal of the grievance to an aggrieved person relating to the assessment under that Act.

4. From an order of assessment, an appeal lies under Section 45 of the Act which reads thus:-

45. Appeal.-(1) Subject to such rules as may be made by State Government under this part any dealer objecting to an order of assessment or penalty or both passed by the prescribed authority against him, or a person objecting to an order of penalty passed against him or an order under Section 27 may appeal to the Joint Commissioner or the Deputy Commissioner specially authorized in this behalf. (2) And where an order of assessment or penalty against a dealer has been passed under Section 17 or 19 by an authority other than the prescribed one as a consequence of the proceeding having been transferred by the Commissioner under sub-section (5) of Section 9, the dealer may appeal in the prescribed manner to the authority next above the officer passing that order not being an authority below the rank of a Joint Commissioner.

(3) No appeal under sub-section(1) or (2) shall be admitted unless, the dealer objecting to an order of assessment has paid twenty per centum of the tax assessed or full amount of admitted tax whichever is greater.

(4) Every appeal under this section shall be filed within forty-five days of the receipt of the notice of demand but where the appellate authority is satisfied that the appellant had sufficient reason for not preferring appeal within time, it may condone the delay.

(5) The appellate authority while disposing of an appeal, against an order, other than an order under Section 27, may

(a) (i) confirm, annul, reduce, enhance or otherwise modify such order; or

(ii) set aside the order directing the authority below to make fresh order after further enquiry on points as may be directed; and

(b) in other cases pass such order as it may, for reasons to be recorded in writing, deem fit.

(6) No order under this section shall be passed without giving reasonable opportunity of hearing to the appellant as also the authority whose order has been appealed against.

(7) Any appeal or proceedings relating thereto filed and pending before the Deputy Commissioner since before the coming into force of this part will be deemed to have been filed and/or transferred to the Joint Commissioner or before the Deputy Commissioner specially autho