JUDGMENT V. K. Mehrotra, J. - The dispute in-this petition relates to the liability of the petitioner (M/s. Dharam Vir Singh Rajendra Singh, Kishan Sangh Samiti Cane Crusher, Village Dhamrauli, District Bijnor) for payment of sugarcane purchase tax for the season 1975-76. The petitioner had approached this Court earlier also in respect of the liability of this year through Writ Petition No. 489'pf 1977. A Division Bench of this Court remanded the matter, by its order dated 11th December, 1979, to the appellate authority, after allowing the petition in part. The Bench quashed the demand in respect of the payment of development commission and the amount of penalty. In respect of the payment of purchase tax, the Bench directed the matter to be redetermined after opportunity to the petitioner. 2. The matter was decided again in consequence of the judgment aforesaid by the appellate authority by its order dated January 28, 1979 (Annexure-15) to the Writ Petition. The appeal was dismissed again. The petitioner has approached this Court for redress through the present writ petition. 3. On July 4, 1979, while admitting the petition for hearing, this Court directed issue of notice to the respondents. A counter-affidavit has been filed in the case which has been sworn by Sri Devendra Nath Singh, Khandsari Inspector, Dhampur, District Bijnor. The assertions made in this counter-affidavit have not been controverted on behalf of the petitioner by way of filing any rejoinder- affidavit. It has been stated before us by the learned counsel for the petitioner that in spite of the repeated communications, the petitioner has not come forward to do so. 4. Three submissions were made before us by the learned counsel for the petitioner today. The first of these was that after the earlier decision of this Court by which the demand for the amount of development commission and penalty had been quashed the petitioner moved applications for refund of that amount. The refund was, however, not granted. As such, the petitioner was entitled to a direction in respect of the refund of the amount 5. The submission about the direction of refund relates to the amount deposited by the petitioner as development commission and also that said to have been deposited by him as the amount.of penalty. This aspect of the matter has been dealt with in the counter-affidavit in paragraphs 10 and 11 thereof. The submission about the direction of refund relates to the amount deposited by the petitioner as development commission and also that said to have been deposited by him as the amount.of penalty. This aspect of the matter has been dealt with in the counter-affidavit in paragraphs 10 and 11 thereof. It has been asserted in paragraph 10 of the counter-affidavit that the petitioner had deposited the development commission for the year 1975-76 with the proper authority and that this amount has not been realised by the Assessing Officer. On this averment, which has remained uncontroverted, it is obvious that the circumstances of the instant case do not justify a direction to the respondents to refund the amount deposited by the petitioner as development commission for the year 1975- 76. 6. In the aforesaid two paragraphs of the counter-affidavit, it has also been asserted that after the decision of this Court by which the demand of penalty had been quashed, the petitioner was asked to appear before the appropriate authority for determination of the amount of penalty afresh. It has further been stated that in spite of the repeated notices, the petitioner did not appear before the appellate authority so that the amount of penalty could not be determined. The counter-affidavit was sworn on January 23, 1980. If the factual position about the penalty still remains the same as mentioned in the aforesaid paragraphs of the counter-affidavit, it is clear that no direction for refund of any amount of penalty can justifiably be issued by this Court at this stage and till such time that the amount is actually ascertained. 7. The second submission of the learned counsel for the petitioner is about the correctness of the demand of purchase tax. Learned counsel attempted to urge that intimation dated December 1, 1975 had been sent to the respondents that irrespective of the fact that his Unit had two crushers, which could be worked by it during the season, the petitioner intended to work only one crusher. The finding of the appellate authority in this regard is that there was nothing on record to sustain the claim of the petitioner that any intimation of the nature mentioned by the petitioner was given to the appropriate authority. The finding of the appellate authority in this regard is that there was nothing on record to sustain the claim of the petitioner that any intimation of the nature mentioned by the petitioner was given to the appropriate authority. The finding further is that the copy of the alleged intimation dated December 1, 1975, shown to the appellate authority, appeared to be an afterthought and was unreliable. In this state of affairs, it cannot be said that the petitioner gave any intimation that he was working with only one crusher. 8. The other submission made before us by the learned counsel for the petitioner was that the inspection reports of the Khandsari Inspector, of which copies have been filed as annexures to the writ petition, clearly established that only one of the two crushers was actually worked by the petitioner. There is nothing in the appellate order to suggest that this plea was raised before the appellate authority in the form in which it is now attempted to be raised before us. We are, therefore, not inclined to hold that the appellate authority had committed any manifest error of law on this ground. 9. It was then urged that before the respondents could require the petitioner to deposit purchase tax for the entire season 1975-76 on the finding that there were two crushers which were worked by the Unit of the petitioner, a positive finding about it should have been recorded. Reliance, in support of the submission, has been placed on two decisions of this Court The first of these was in the case of Anil Kumar v. State of U.P., 1982 UPTC 939 : 1982 Tax LR 3199) which had been delivered by one of us (V.K. Mehrotra, J.). The decision was given in entirely different circumstances. The grievance of the petitioner there was that though an intimation of the start of the unit from December 16, 1979 had been given to the authority and yet, the demand of purchase tax was made on the finding that the Unit worked from October 23, 1979. The respondents had pleaded that the intimation was not given to the assessing authority by registered post as was required by the statute. In this context, after referring to several earlier, decisions, this Court quashed the order with the conclusions, inter alia, that.... The respondents had pleaded that the intimation was not given to the assessing authority by registered post as was required by the statute. In this context, after referring to several earlier, decisions, this Court quashed the order with the conclusions, inter alia, that.... No finding has been recorded by the Appellate Authority or even by the Assessing Authority that the petitioner's unit was found to have started working on any date earlier than December 16, 1979 which was the changed date for the commencement of the unit intimated by the petitioner. Such a finding was necessary before the petitioner could be held liable for payment of tax for a period anterior to December 16, 1979 in terms of the third proviso to Rule 13-A(2)." 10. It is clear that the Court had accepted the petitioner's version that intimation had been given by the petitioner of that case that the unit will start functioning from December 16, 1979 and had negatived the case of the respondents about the petitioner's liability for the payment of purchase tax for a period anterior to it on the basis that intimation had not been sent by registered post. In the same decision, we find the following observations : "The rules contained in Chapter III are calculated to ensure that purchase tax is paid by the owner of a unit on the basis of assumed quantity of sugarcane, where it is to be paid on that basis, for the entire period during which the option is to operate.....". The second case placed before us was of Mahesh Chandra Agarwal v. State of U.P., 1987 All LJ 915, decided by one of us (Dr. R. R. Misra, J.). The demand to pay the purchase tax for the entire crushing season 1981-82 on the basis that both the crashers in the unit of the petitioner had worked was held to be illegal by this Court. That decision too turned on its own facts because we find (in paragraph 2 of the report) the following observations :- "In paragraph 3 of the writ petition it hag been clearly stated by the petitioner that during the season 1981-82 the petitioner had closed one crusher w.e.f. 20-2-1982 and did not work the same thereafter. It is further alleged that the petitioner had sent due intimation with regard to the same to respondent No. 3. It is further alleged that the petitioner had sent due intimation with regard to the same to respondent No. 3. In paragraph 4 of the counter-affidavit although it is alleged that the contents of paragraph 3 of the writ petition, as stated, are not admitted but there is no averment in the counter, affidavit that no intimation relating to the working of one crusher only was sent by the petitioner. In view of the various inspection notes and the averments made in the writ petition, in my opinion, the petitioner is liable to pay purchase tax in respect of one power crusher only and the view taken by the opposite parties under the impugned order is erroneous in law." 11. We may also mention that apart from the inspection of Khandsari Inspector, the Assistant Sugar Commissioner had also made an inspection of the unit in that case. 12. The observation relating to the inspection notes on the basis whereof this Court came to the conclusion that the petitioner in that case had worked only one crusher is to be read in conjunction with the opening part of the paragraph. The conclusion recorded in the opening part of the paragraph was found supported- by this court by the various inspection notes. 13. It was lastly urged by the learned counsel for the petitioner that the demand of purchase tax from the petitioner for the period between December 11, 1975 and April 23, 1976 was unsustainable because of the fact that the unit of the petitioner had not worked during this entire period. This submission is of no help to the petitioner in view of what was actually urged before the appellate authority on behalf of the petitioner in this case. This aspect does not appear to have been raised before him and we are not inclined to permit the petitioner to raise it in the first instance. 14. In the ultimate analysis, we find that the petitioner is not entitled to any relief in the present writ petition. The petition is, therefore, dismissed. 15. In the peculiar circumstance of the case, however, we leave the parties to bear their own costs.