JUDGMENT :

A. Pasayat, J. - Legality of order passed by the Commissioner of Sales-tax, Orissa (respondent No, 2) setting aside the order of Sales-tax Officer, Ganjam-I Circle, Barhampur holding that no penalty u/s S-B,(3)of the Orissa Sales-tax Act, 1947 (in short, the'Act') was leviable, is the subject-matter of this appeal.

2. Background facts shorn of unnecessary details are as follows :

The appellant is a dealer registered under the Act. During the assessment year 1974-75 and 1975-76, the appellant had collected sale-tax on the sale of dry cell batteries 12%.A writ application bearing OJC No. 928 of 1973 was filed in this Court for a direction that dry cell batteries were taxable 5%,and not 12% as luxury goods. By judgment dated 8 7-1975 this Court held that the dry cell batteries are taxable at the rate of 5% and not at 12% as luxury goods. The validity of Finance Department Notification No, 23710 dated 16-6-1991 notifying the rate of tax on the sale of dry cell batteries at 12% with effect from 17-1971 was the subject-matter of challenge. Undisputedly, the appellant had collected sales-tax on dry cell batteries ' 12 % and had deposited it. Keeping in view the decision of this Co