RAMANUJAM, J.

The point that arises for consideration in this case is whether they levy of penalty under section 22(2) of the Tamil Nadu General Sales Tax Act, 1959According to the Revenue, the Tribunal has been properly understood the scope of the provisions of section 3(2) of the Tamil Nadu Sales Tax (Surcharge) Act, 1971, on a proper interpretation of section 3(2) of the said Act, section 22 of the Tamil Nadu General Sales Tax Act, 1959

It is seen from the order of the Tribunal that the Tribunal, in support of its view, that section 22 of the Tamil Nadu General Sales Tax Act, 1959, would not apply to surcharge leviable under section 3 of the Surcharge Act, 1971, has referred to and relied upon the decision of this Court in Shah & Co. v. State of Madras and of the Supreme Court in Khemka & Co. v. State of Maharashtra. We are, however, of the opinion that the said decisions have no application to the facts of the present case. Those cases dealt with penalty, leviable under the Central Sales Tax Act, and the question arose whether the levy of penalty could be sustained under the provisions of the Tamil Nadu General Sales Tax Act, without a specific enabling provision in the Central Sales Tax Act for the levy of penalty. We are not concerned with such a situation here. Here both the Tamil Nadu General Sales Tax Act, 1959 and this Court, on a close scrutiny of the relevant provisions of the Tamil Nadu General Sales Tax Act, 1959. In State of Tamil Nadu v. Mathurai Veerasamy & Co. an identical question, as arose in Rajamani v. State of Tamil Nadu came up for consideration. Without reference to the earlier decision, a Division Bench of this Court took a contrary view and held that section 22 of the Tamil Nadu General Sales Tax Act, 1959.

Even a cursory glance of the provisions of section 3(2) of the Surcharge Act, 1971 would show that all the provisions of the Tamil Nadu General Sales Tax Act, 1959 in preference to the view expressed in State of Tamil Nadu v. Mathurai Veerasamy & Co. Though, under normal circumstances, when there is a diversity of opinion between two Bench decisions of this Court, this Court will refer the matter to a Fuller Bench for an authoritative ruling, we are relieved of the necessity of making such a reference to a Fuller Bench, in view of a subsequent decision of the Supreme Court in Ashok Service Centre v. State of Orissa which appear to take a view similar to the one taken in Rajamani v. State of Tamil Nadu. Since the decision of the Supreme Court concludes the issue, in the face of that decision, State of Tamil Nadu v. Mathurai Veerasamy & Co. cannot be taken to lay down the law correctly, and there is no necessity for the question being considered by a Fuller Bench.In Ashok Service Centre v. State of Orissa the Supreme Court was considering more or less a similar question. There the original Orissa Sales Tax Act, 1947. Here we have an a fortiori case. Section 3(2) of the Surcharge Act, 1971 specifically makes the provisions of the principal Act, as are applicable to the levy of sales tax, applicable to the levy of surcharge. Section 3(2) being part of the charging provision under the Surcharge Act, when it does not say that only those provisions of the principal Act which relate to the assessment and collection of tax will be applicable to the levy of surcharge under the Surcharge Act, all the provisions of the principal Act, including section 22, which apply to the levy of sales tax, will be applicable to the levy of surcharge. As a matter of fact, the Supreme Court has specifically rejected the contention of the Revenue in that case observing, that, if the contention of the State, that all the provisions of the principal Act could not be made applicable to the levy of additional tax was accepted, then the provisions of the principal Act relating to the recovery of tax and the levy of penalty would become unavailable for collecting additional tax and that the provisions of the principal Act,