VEERASWAMI, J.

These appeals arise from an order of Ramakrishnan, J., dismissing two connected petitions, one to quash a penalty of Rs. 1, 000 in lieu of confiscation of goods under section 42(3)(a) of the Madras General Sales Tax Act, 1959, and the other for a direction to the respondents to deliver to the appellant the goods which bad been seized and confiscated while on transit at Kandaigoundanchavadi check post which is the border of Coimbatore district in this State and Calicut in the Kerala State. The learned Judge declined to accept that the said provision is invalid, and held that R. S. Jhaver v. Commissioner of Commercial Taxes and Commissioner of Commercial Taxes v. R. S. Jhaver in which this Court held, the Supreme Court agreeing with it, that section 41(4) was invalid, were distinguishable.

The lorry, K.L.R. 3919, was searched by the Check Post Officer and was found to carry at the time 85 bags of which 45 contained maida, 20 atta and 20 khandasari sugar. The lorry driver, however, carried with him a sale bill and delivery note which covered only 85 bags of atta. On the ground that the lorry attempted to transport without any sale bill or delivery note for the maida and khandasari sugar and on suspicion that there was an attempt at evasion of tax, the Check Post Officer by an order dated 2nd March, 1965, confiscated the goods, but gave an option to the appellant to pay a penalty of Rs. 1, 000 in lieu of confiscation of the goods. The Check Post Officer declined to accept the explanation of the appellant which was that he had purchased in Madras 85 bags of atta, 45 bags of maida and in Nellore 20 bags of khandasari sugar, he being of the view, as we said, that there was really an attempt to suppress the sales of maida and khandasari sugar under the cloak of the sale bill and delivery note for atta only.Before Ramakrishnan, J., no attempt appears to have been made to challenge the validity of the penalty order on its merits and the learned Judge proceeded on the basis that in the exercise of writ jurisdiction the finding of the Check Post Officer that the explanation of the appellant was not acceptable could not be revised. No point about this has been made for the appellant before us. The appeals have, therefore, been confined to the validity of section 42(3)(a) and the effect of R. S. Jhaver v. Commissioner of Commercial Taxes and Commissioner of Commercial Taxes v. R. S. Jhaver on that question.

R. S. Jhaver v. Commissioner of Commercial Taxes decided by a Division Bench of this Court, to which one of us was a party, held that the Madras General Sales Tax Act was not a law of goods and a power to confiscate is not ancillary or incidental to a power to tax on sale or purchase of goods, though of course such power to tax undoubtedly included the power to make due provisions to prevent or check evasion of tax and make it unprofitable. On that view this Court struck down section 41(4) which provided for search and seizure, from the premises of a dealer, of goods unaccounted for and for confiscation thereof. The section also provided for levy of penalty in lieu of such confiscation. The Supreme Court agreed with the conclusion of this Court as to the invalidity of section 41(4), but on a different ground. Clause (a) of the second proviso to section 41(4), which was introduced by a later amendment, stated that in cases where the goods are taxable under this Act, in addition to the tax recoverable, a sum of money not exceeding one thousand rupees or double the amount of tax recoverable, whichever is greater, may be levied as penalty in lieu of confiscation. The Supreme Court, with reference to this provision, observed (at page 465) :

"But under clause (a) of the second proviso the tax is ordered to be recovered even before the sale, in addition to the penalty not exceeding Rs. 1, 000 or double the amount of tax recoverable whichever is greater." *

Referring to the scheme of the Act, the Supreme Court considered