JUDGMENT B.N. KIRPAL, J. The Sales Tax Appellate Tribunal, Delhi has referred to this Court the following question of law for our opinion : "Whether, on the facts and in the circumstances of the case the Tribunal was right in deleting the penalty of Rs. 20,000 levied on the assessee." According to the statement of facts, vide order of the Tribunal in respect of the assessment year in question, namely, 1971-72, a sum of Rs. 49,000 was payable by the dealer as per its returns. This amount was not paid because, according to the dealer, a sum of Rs. 90,000 was due as refund to it for earlier years as a result of certain reliefs granted by the Assistant Commissioner. Along with the returns, the dealer submitted that the said refund of Rs. 90,000 should be adjusted against the tax of Rs. 49,000 which was payable. The sales tax authorities did not allow the adjustment because, according to them, no refund vouchers, as envisaged by rules 52 and 53, had been annexed with the returns. Penalty of Rs. 20,000 for the non-payment of Rs. 49,000 was levied. When the appeal went to the Tribunal, the same was allowed by it in the following terms: "The controversy, however, in the present case has been now rendered in altogether a different context. The Supreme Court has in a recent decision given on September 7, 1978 in the case of the Northern India Caterers (India) Ltd. (Civil Appeal Nos. 1768-1769 of 1972 [Reported in [1978] 42 STC 386 (SC)]) held that meals served to visitors in the restaurants and hotels are not taxable under the Bengal Finance (Sales Tax) Act, 1941. In this exposition of law which should be treated to hold good in the year involved in the present appeal also as correct position of law it could not be that the assessee was liable for sales tax. In other words in spite of the returns filed by the assessee it was not liable to pay and sales tax under the law on the eatables served by it at its restaurant and hotel. There being thus no tax payable, the question of levy of penalty did not arise for any default in its payments. Such penalty is essentially correlatable to the tax due and is computed at certain percentages of the tax. There being thus no tax payable, the question of levy of penalty did not arise for any default in its payments. Such penalty is essentially correlatable to the tax due and is computed at certain percentages of the tax. In the absence of such tax there could not be levy of penalty, much less its computation. I, therefore, while allowing this appeal, delete the penalty." Thereafter, the Tribunal referred the aforesaid question of law to this Court. As we see it, the answer to the question is self-evident. The Supreme Court having held, and it is not disputed that the said ratio is applicable to the present case, that metals served to visitors in the restaurants and hotels was not taxable under the Bengal Finance (Sales Tax) Act, 1941, at least as far as the assessment year 1971-72 is concerned, there can be no question of any sales tax being payable by the dealer. The dealer, therefore, must be regarded as having wrongly filed its return of sales. Having acted to its prejudice by filing the returns, the dealer cannot be further penalised by imposing a penalty of Rs. 20,000. If in law no tax was payable, then the question of the dealer being subjected to any penalty cannot arise. It is not in dispute that the decision of the Supreme Court referred to by the Tribunal in the case of Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [1978] 42 STC 386, is applicable to the present case. This being so, no tax was payable and consequently no penalty could be realised. The aforesaid question of law is, therefore, answered in the affirmative and in favour of the dealer. The dealer will be entitled to costs. Reference answered in the affirmative.