Honble SINGHAL, J. - This writ petition has been Tiled against the order of the Dy. Commissioner, (Admn) Commercial Taxes Department, dated September 26,1994 by which the goods consigned to the petitioner were directed to be purchased under See.23-D of the Rajasthan Sales Tax Act, 1954(hereinafter called as the Act) read with rule 63-B of the Rajasthan Sales Tax Rules, 1955 (hereinafter called as the Rules).

(2). The brief facts of the case are that the petitioner is dealing in Ply Wood and Block Board etc. The petitioner gave an order to M/s A.T.T. Plywood Industries Pvt.Ltd. -E- 131, Industrial Area, Bhiwadi, Distt. Alwar to send some quantity of Plywood and Block Board of different quality and of different sizes. The goods were supplied vide bill No.60 dated August 30, 1994 and were despatched through vehicle No.HR-36-4445 vide GR No. 8638.

(3). The consignor has shown the quantity, rate of the commodity and has charged the excise duty. The Rajasthan Sales Tax on the value of 40% has been charged as 60;. of the lax is exempt as per eligibility certificate granted to the consignor being a new unit. When the goods were in transit, they were checked by the Asstt.Commercial Taxes Officer (Flying Squad) on August 31,1994 and he brought the truck to Kar Bhawan for enquiry under Sec.23-D of the Act. The goods were seized and the delivery thereof was given to the petitioner on supardgi on August 31, 1994 itself. The Dy.Commissioner (Anti-Evasion) Commercial Taxes Department issued a notice to the petitioner under Sec.23 D of the Act read with rules 55 and 63B of the Rules to appear before him on September 24, l994. In the meantime the enquiry was made by the ACTO (A.E.) and according to his report it was found that it is a matter of under-billing and the value of the goods has not been correctly been stated in the bill. The notice was issued by the Dy.Commissioner (Anti Evasion) on the proposal sent by the ACTO for granting sanction under Scc.23-I) of (he Act to purchase the goods after addition of 10% . A reply to the said notice was submitted and it was stated that no enquiry was conducted. The petitioner has prayed that the documents and the facts on the basis of which under-billing is alleged may be provided to him. Further prayer was made on September 24,1994 to the Dy.Commissioner that the liability of tax is at first point and therefore so far as the petitioner is concerned the goods are tax- paid and question of any evasion of lax in his hand does not arise. A copy of the preliminary enquiry report or the proposal which was sent by the ACT() to the Dy.Commissioner was not provided to the petitioner.

(4). The grievance of the petitioner is that the petitioner should have been given an opportunity and he was not heard either in the preliminary enquiry nor was he given an opportunity and even the copy of proposal sent by the ACTO or the copy of the report was not provided to him while passing the order dated September 26,1994. It is submitted that the order passed by the Dy.Commissioner is without application of mind and is contrary to the principles of natural justice.

(5). The arguments of the learned counsel for the parties have been heard. The provisions of Scc.23-D and rule 63-B read as under —

Sec.23-D "Special provisions relating to underbilliiig—Where the Commissioner,. Commercial Taxes,deems it necessary, he may permit or authorise any officer, not below the rank of an Assistant Commercial Taxes Officer or In-Charge, Check-post, to purchase any goods from a dealer at the price payable within the period and the manner as may be prescribed in this behalf, shown in his purchase bill increased by 10% or sale bill, as the case may be. The dealer shall be bound to sell such goods to the officer so permitted or authorised and if he fails or refuses to sell the goods he shall be liable to a penally not exceeding 30% of the offer price of the goods, and such penalty shall be imposed and recovered by such officer in the manner presc

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