JUDGMENT K. P. RADHAKRISHNA MENON, J. - The reliefs prayed for in the original petition read : "(a) to issue a writ of mandamus or other appropriate writ, direction or order directing the first respondent to refund the sum of Rs. 5,00,000 (rupees five lakhs only) collected towards the sales tax dues for the provisional assessment year 1988-89 with 6 per cent interest, to the petitioner-firm forthwith; (b) to issue a writ of certiorari or other appropriate writ, direction or order directing the respondents calling for the records relating to the proceedings of the first respondent, authorising to retain the amount of Rs. 5,00,000 with the department and quashing the same; (c) to award the cost of this petition to the petitioner; (d) to grant such other reliefs as this Honourable Court be deem fit and proper to grant." The provisional assessment for the period from April, 1988 to February, 1989 (exhibit P1) was set aside by the appellate authority as is seen from exhibit P2 order. The operative portion thereof reads : "In the result the provisional assessment impugned in this appeal stands set aside and remitted back to the assessing authority for fresh disposal." This order is dated 28th day of February, 1990. 2. The complaint of the petitioner is that the assessing authority however, has not completed the assessment pursuant to the directions contained in exhibit P2 appellate order, so far. Not only that, the first respondent has not refunded the tax the petitioner had paid during the pendency of the appeal. The retention of the said tax amount by the first respondent in the circumstances, is without the authority of law. The demands made by the petitioner for refund of the said tax amount has fallen on deaf ears. The petitioner therefore has moved this application for the issuance of a writ in the nature of mandamus directing the first respondent to refund the amount, he had paid in excess with 6 per cent interest. 3. Can this relief be granted, is the question before me. It is relevant in this context to make a reference to section 44 of the Kerala General Sales Tax Act, 1963 (for short "the Act") as also rules 43(2) and 44 of the Rules framed thereunder. I shall now extract section 44 : "44. Refunds. 3. Can this relief be granted, is the question before me. It is relevant in this context to make a reference to section 44 of the Kerala General Sales Tax Act, 1963 (for short "the Act") as also rules 43(2) and 44 of the Rules framed thereunder. I shall now extract section 44 : "44. Refunds. - (1) When an assessing authority finds, at the time of final assessment, that the dealer has paid tax in excess of what is due from him, it shall refund the excess to the dealer. (2) When the assessing authority received an order from any appellate or revisional authority to make refund of tax or penalty paid by a dealer, it shall effect the refund. (3) Notwithstanding anything contained in sub-sections (1) and (2), the assessing authority shall have power to adjust the amount due to be refunded under sub-section (1) or sub-section (2) towards the recovery of any amount due, on the date of adjustment, from the dealer. (4) In case refund under sub-section (1) or sub-section (2) or adjustment under sub-section (3) is not made within ninety days of the date of the final assessment or, as the case may be, within ninety days of the date of receipt of the order in appeal or revision or the date of expiry of the time for preferring appeal or revision, the dealer shall be entitled to claim interest at the rate of six per cent per annum on the amount due to him from the date of expiry of the said up to the date of payment or adjustment." Rule 43(2) reads : "43. Communication or order, etc. - (1) .............. (2) The order passed in appeal or revision shall be given effect to by the assessing authority who shall, either refund or adjust within ninety days of the receipt of the order as provided in section 44 any excess tax found to have been collected and shall collect any additional tax which is found to be due, in the same manner as a tax assessed by himself." Rule 44 reads : "44. Orders to be given effect to. Orders to be given effect to. - Every order passed by the Appellate Tribunal or the High Court shall, on authorisation by the Appellate Tribunal or the High Court, as the case may be, be given effect to by the assessing authority, who shall either refund or adjust within ninety days of the receipt of the authorisation as provided in section 44, any excess tax found to have been collected and shall also collect any additional tax which is found to be due in the same manner as a tax assessed by himself." Here we are concerned with the question as to whether the petitioner is entitled to get refund of the tax, he had paid in terms of exhibit P1, on the basis of exhibit P2 order of the appellate authority, setting aside exhibit P1. It is not the case of the petitioner that the appellate order directs refund of the tax, he had paid during the pendency of the appeal. But on the other hand his case is that the assessing authority has not so far completed the assessment pursuant to the directions contained in the appellate order and, therefore, it should be held that the tax, he had already paid is being retained unauthorisedly. This argument cannot be taken cognisance of in the light of the provisions of the Act and the Rules extracted above. 4. What then is the scope of these provisions ? Sub-section (1) of section 44 is to cover cases where a dealer has paid the tax in advance. In such cases if the assessing authority, while making the final assessment finds that the dealer has paid tax in excess of what is due from him, the assessing authority is bound to refund the excess to the dealer. Sub-section (2) on the other hand, commands the assessing authority to effect refund of the tax or penalty paid by a dealer on the assessing authority receiving an order in that regard either from the appellate authority or the revisional authority. Sub-section (3), however, empowers the assessing authority to adjust the amount due to be refunded under sub-section (1) or sub-section (2) towards the recovery of any amount due, on the date of adjustment, from the dealer. Sub-section (3), however, empowers the assessing authority to adjust the amount due to be refunded under sub-section (1) or sub-section (2) towards the recovery of any amount due, on the date of adjustment, from the dealer. Rule 44 says that an order made mention of in sub-section (2) of section 44 shall be given effect to within ninety days of the receipt of the said order; in that, the excess tax found to have been collected shall be refunded within ninety days of the receipt of the order mentioned in section 44(2) authorising the refund. This rule also empowers the assessing authority to collect any additional tax which is found to be due under the said order in the same manner as a tax assessed by himself. Clause (2) of rule 43 provides that the order passed in appeal or revision shall be given effect to by the assessing authority and while doing so, he shall either refund or adjust within ninety days of the receipt of the order, any excess tax found to have been collected. Similarly the assessing authority can also collect any additional tax which is found to be due after adjustment, in the same manner as a tax assessed by himself. What would be the consequence if the assessing authority fails to pass the orders contemplated under sub-sections (2) and (3), is stated in sub-section (4). This sub-section says that the dealer in whose favour the order under sub-section (1) or sub-section (2) or sub-section (3) is passed, is entitled to claim interest at the rate of 6 per cent per annum on the refundable amount due to him from the date of the expiry of the period of ninety days of the date of final assessment or, as the case may be, within ninety days of receipt of the order in appeal or revision or the date of expiry of the time for preferring appeal or revision, up to the date of payment or adjustment. It, therefore, follows that in case the assessing authority fails to exercise the jurisdiction conferred on him under sub-sections (1), (2) and (3) of section 44 and consequently the assessing authority retains the excess tax and the penalty, a dealer had paid, the dealer is entitled to claim interest at 6 per cent per annum from the date of the expiry of the ninety days contemplated under sub-section (4) and rules 43(2) and 44, up to the date of payment or adjustment. Nothing more. 5. Finding it difficult to grapple with the situation, the learned counsel approached the issue from a different angle. According to the counsel, the retention of the amount in dispute beyond ninety days of the appellate order is without the authority of law and hence liable to be refunded without reference to section 44. In support of this argument the counsel relied on a decision of the Supreme Court in Salonah Tea Company Ltd. v. Superintendent of Taxes [1988] 69 STC 290; AIR 1990 SC 772 . The Supreme Court in that case was considering a question as to whether the tax directed to be refunded was collected without the authority of law. What is collection of tax without the authority of law is explained thus by the Supreme Court : "Courts have made a distinction between those cases where a claimant approaches a High Court seeking relief of obtaining refund only and those where refund is sought as a consequential relief after striking down of the order of assessment, etc. Normally speaking in a society governed by rule of law taxes should be paid by citizens as soon as they are due in accordance with law. Equally, as a corollary of the said statement of law it follows that taxes collected without the authority of law from a citizen should be refunded because no State has the right to receive or to retain taxes or monies realised from citizens without the authority of law." Under such circumstances it can, going by the above observations of the Supreme Court, be said that the retention of the amount is without the authority of law and, therefore, the party who paid the tax is entitled to get a refund. Here the position is just the opposite. The amount paid as tax, the authorities are entitled to collect in advance on the basis of provisional assessment. Here the position is just the opposite. The amount paid as tax, the authorities are entitled to collect in advance on the basis of provisional assessment. Retention of such amounts, until the final assessment is over, cannot be said to be retention without the authority of law. Not only that, the refund is claimed under section 44. That being the position the argument of the learned counsel for the petitioner that the amount in dispute has been retained without the authority of law is liable to be rejected. The original petition, for the reasons stated above, is dismissed. No costs. Petition dismissed.