JUDGMENT R.M. Sahai, J. - Petitioner, a sugar factory has invoked extraordinary jurisdiction of this Court against demand notices D/- 6-8-79 levying interest and penalty for delayed payment of tax u/s 3 of U.P. Sugarcane Purchase Tax Act 1961. Although initially the demand was challenged on various grounds but the learned counsel for petitioner confined it to erroneous computation of interest and omission to afford any opportunity before imposing penalty. 2. From counter affidavit it appears that notices for levying penalty were issued in 1976 to which petitioner replied seeking waiver of interest etc. as sugar factories were passing through crisis. In 1977 during audit it transpired that tax for each month was not deposited by petitioner within time. On 15th July 1977 petitioner received a letter enquiring if he had deposited any amount out of Rs. 11,27,980.45 interest and penalty for 1969-70 to 1973-74. In reply it was asserted that there were no arrears of tax against (sic)........... Correspondence went on for sometime till on request of petitioner the Assistant Sugar Commissioner sent on 17th Sept. 1977 a chart giving in detail the delay, in payment of tax, for each month of 1969-70 and 1970-71 and the interest and penalty calculated on it. A reply was sent on 26th Oct. 1977. It was stated that no penalty could have been imposed against petitioner nor any show cause notice was given to it. It was also claimed that the chart did not disclose the manner in which the amount of penalty was calculated. In any case, according to petitioner neither any interest nor any penalty was due against it. On 1-6-78 the Assessing Officer intimated petitioner that the audit party had calculated interest for delayed payment, by petitioner, for 1969-70 and 1970-71 mentioned in the chart which may be deposited within 15 days. In respect of penalty the assessing authority passed an order on same day. It was held that as Sugar Mills mentioned in the order had not deposited tax within time they were liable to pay penalty. Petitioner is one of the Mills mentioned in it. 3. Purchase Tax u/s 3(1)(a) of the Act is levied on owner of the factory and on the sugarcane purchased by it. Sub-sec. It was held that as Sugar Mills mentioned in the order had not deposited tax within time they were liable to pay penalty. Petitioner is one of the Mills mentioned in it. 3. Purchase Tax u/s 3(1)(a) of the Act is levied on owner of the factory and on the sugarcane purchased by it. Sub-sec. (2) of this Section read with R. 4 provides for payment of 50 per cent of the amount due within a fortnight of the close of each month on the quantity of sugar-cane purchased in that month and the remaining outstanding 50 per cent in equal instalments beginning from 15th May and ending on 15th Sept. each year. Sub-sec. (3) provides for levy of interest if the tax is not paid within prescribed time and sub-sec. (4) provides and for levy of penalty if the tax or interest or both remains unpaid for more than fifteen days. Rule 8 provides for payment of interest and method of calculation of penalty. Sub-rules 1 and 2 of it read as under : "(1) The amount of interest due on the arrears of tax under sub-sec. (3) of S. 3 of the Act shall be payable on the first day of the month next following the month in respect of which such interest is due. (2) Where any tax or interest payable under the Act remains unpaid for a period exceeding fifteen days beyond the date mentioned in Rule 4 of sub-r. (1) as the case may be, for the payment thereof, the owner of the factory shall, in addition to the amount due as tax and interest thereon, pay a penalty which for the first two months shall be calculated at the rate of 1 per cent, for the next two months at the rate of 4 per cent and for the further two months at the rate of six per cent on the total sums payable. Thereafter penalty at a higher rate not exceeding 10 per cent as may be fixed by the Assessing Officer shall be payable by the owner of the factory in addition to the arrears of tax and interest." 4. From annexure 10 a chart prepared by petitioner indicating the time and date of payment of tax it is apparent that tax was not deposited within the time specified. The liability of interest and penalty therefore could not be disputed. From annexure 10 a chart prepared by petitioner indicating the time and date of payment of tax it is apparent that tax was not deposited within the time specified. The liability of interest and penalty therefore could not be disputed. But a comparison of two charts one of the petitioner (annex. 10) and the other of opposite parties (Annex. 6) there is divergence in the extent of delay. But it is not necessary to examine it as the number of months and days mentioned in the chart of opposite party appears to suffer from manifest error. For instance the first entry for 1969-70 mentions due date of payment as 15th Dec. 1969 and the date of payment as 4-3-70. The extent of delay mentioned is 2 months 20 days. While calculating delay the day on which payment could have been made should have been excluded. Even assuming it could be calculated from 15th Dec. the extent of delay could not be 2 months 20 days. Same is the error in calculation for other months. In absence of any indication as to how this was done the order has to be quashed. It has to be computed again. 5. Further, rate of interest till Aug. 1970 was 6 per cent. It was enhanced to 12 per cent by U.P. Act 1 of 1971. From the order passed by Assessing Officer and the chart sent to petitioner it is not clear if the calculation was done at 6% or 12%. Learned Additional Chief Standing Counsel urged that Act 1 of 1971 was retrospective therefore interest leviable on petitioner was 12%. We do not find any merit in the submission. S. 2 of U.P. Act i of 1971 reads as under : "In S. 3 of the U.P. Sugarcane (Purchase Tax) Act 1961, hereinafter referred to as the Principal Act. (1) In sub-sec. (3) (a) for the words "six per cent" the words "twelve per cent" shall be substituted. (b) at the end, the following Explanation shall be inserted and be deemed to have been inserted namely- Explanation :- Interest falling under this sub-section shall be recoverable notwithstanding that no order of notice of assessment, imposition or demand of such interest is passed or issued by any authority." It is obvious that only explanation was made retrospective and not clause by which rate of interest was enhanced. 6. 6. In respect of penalty also the calculation has to be done as provided in R. 8 extracted above and even where there is delay of more than six months the rule does not contemplate levy of 10% in every case. It only fixes the maximum, leaving it for Assessing Officer to decide, in the circumstances of each case, as to on what rate penalty should be levied. Moreover, no penalty could be levied without affording any opportunity to petitioner. 7. In the result this petition succeeds and is allowed. The order passed by assessing authority dated 6th Aug. 1979 filed as Annexures 8 and 9 to the writ petition is quashed. He is directed to recalculate interest and penalty after affording opportunity to petitioner. In case, after recalculation, any amount is found due to petitioner then it shall be refunded as petitioner in compliance to order passed by this Court had deposited the entire demand raised against it the details of which are mentioned in paras 37 and 38 of writ petition. The petitioner shall be entitled to costs.