JUDGMENT T. L. VISWANATHA IYER, J. - The challenge is to an order imposing a penalty of Rs. 50,000 under section 45A of the Kerala General Sales Tax Act, 1963 and the confirmation thereof by the Deputy Commissioner and the Board of Revenue in successive revisions. The orders impugned are exhibits P1, P2 and P6. 2. The petitioner is a dealer in petroleum products at Vadakara under the Hindustan Petroleum Corporation. There was a search of his premises on January 6, 1988 by the Intelligence Officer, Agricultural Income-tax and Sales Tax, Thalasserry and his team. Physical verification of the stock disclosed substantial differences of the items mentioned in exhibit P1 order. A pocket note book was also recovered from the business place of the petitioner, which revealed unaccounted transactions of 4,216 litres of petrol and 22,269 litres of diesel. The petitioner thus failed to maintain true and complete accounts regarding the business transactions for the year 1987-88, which is an offence falling under section 45A(1)(b) of the Act. After issuing show cause notice and hearing, the order exhibit P1 was passed imposing a penalty of Rs. 50,000. According to the Intelligence Officer, who passed exhibit P1, the amount of tax payable on the stock disclosed by the pocket note book as well as the differences in stock at the time of inspection, was Rs. 27,610. The maximum penalty imposable was Rs. 55,220 and a penalty of Rs. 50,000 was imposed. As stated earlier, this was confirmed in revision and second revision by the Deputy Commissioner and the Board of Revenue. 3. The petitioner had put forward various contentions regarding the stock differences at the time of inspection as also regarding the pocket note book, which, according to him, did not relate to his business. These aspects have been discussed in detail by all the three authorities and it has been found that there were stock differences at the time of inspection and that the pocket note book also related to the petitioner's business and further that the said pocket note book disclosed unaccounted transactions of the petitioner to the extent mentioned earlier. These are all questions of fact on which the three authorities came to the above conclusions. These are all questions of fact on which the three authorities came to the above conclusions. Nothing has been brought before me to show that these findings of fact entered by the authorities are in any manner unjustified by the facts and materials in the case or that they are perverse. In fact, no serious challenge was made before me in relation to these conclusions made by the three authorities. I also find adequate materials in the case to uphold the said findings of the authorities and do not find any reason to quash the impugned orders. 4. If so, the conclusion is inevitable that the petitioner has not maintained true and complete accounts of his business transactions. The question then is what is the quantum of penalty that could be imposed on him. The petitioner seriously contended that he did not evade payment of any tax payable under the Act and, therefore, the question of imposing penalty does not arise. It was suggested that even if penalty is imposable, the maximum penalty that could be imposed is Rs. 5,000 and not twice the amount of tax due from him. On hearing counsel for the petitioner, I am satisfied that this submission of the petitioner is on firm ground and that the imposition of penalty related to twice the amount said to be evaded was not justified, in the facts and circumstances of the case. The petroleum products dealt with by the petitioner during 1987-88 were all taxable only at single point. Thus petroleum products constituted item 140 of the First Schedule to the Act during the year 1987-88 and the point of levy was "the first sale in the State by any oil company liable to tax under section 5 except where the sale is by any oil company to another oil company". Admittedly, the petitioner is not an oil company. He is only a dealer. Be it noted that the tax is not on the first sale by any dealer liable to tax under section 5, but only on the first sale by an oil company. In other words, item 140 during the year cast the liability for tax only on an oil company, so long as it was the first seller in the State and so long as the purchaser was not another oil company. In other words, item 140 during the year cast the liability for tax only on an oil company, so long as it was the first seller in the State and so long as the purchaser was not another oil company. No liability was cast on any other person in relation to the petroleum products, except those which come under sub-item (xxiii). The petitioner, whether he was the first seller or any other seller during the year, did not have any liability for tax on the sale of petroleum products by him. Therefore, for the simple reason that there could be no attempt by the petitioner to evade payment of any tax, no penalty could be imposed on him related to the quantum of tax alleged to have been sought to be evaded. The very basis of the order, exhibit P1, and its confirmation by the orders, exhibits P2 and P6, is the attempt at evasion of payment of tax and the penalty has been related to that amount. Since the petitioner did not have any liability during the year for payment of tax on any petroleum products as he was not an oil company, the penalty could not be imposed under the first part of section 45A(1). It could be only on the second part of section 45A(1), the liability under which is only a maximum of Rs. 5,000. 5. The materials gathered at the time of inspection would reveal that the petitioner has not kept true and complete accounts. Even the stock verification made at the time of inspection disclosed considerable discrepancies. The petitioner has thus failed to keep true and complete accounts and thereby committed an offence falling under clause (b) of sub-section (1) of section 45A of the Act. On the facts of this case, as stated earlier, the offence falls under the latter clause of section 45A(1) subject to a maximum penalty of Rs. 5,000. The reasons why the petitioner suppressed these transactions from his accounts are not clear. Evidently, there was some other reason, as suggested by the Board of Revenue. It is unnecessary to delve deep into the question as to what motivated the petitioner to suppress the transactions. This is, therefore, a case where the levy of penalty on the petitioner should have been geared to the latter part of section 45A(1) of the Act with a maximum penalty of Rs. 5,000. 6. It is unnecessary to delve deep into the question as to what motivated the petitioner to suppress the transactions. This is, therefore, a case where the levy of penalty on the petitioner should have been geared to the latter part of section 45A(1) of the Act with a maximum penalty of Rs. 5,000. 6. This point was raised before the Deputy Commissioner. But he has proceeded on the basis that the petitioner is liable to pay tax on the sale of petroleum products. The other question, as to what should be the quantum of penalty if the maximum penalty imposable is only Rs. 5,000 has not been considered by any of the authorities. Since the statutory authorities have not applied their minds as to what should be the penalty imposable on the petitioner and it is for them to advert to this aspect, I feel that the matter should be remitted to the Intelligence Officer for fresh consideration on this limited issue. 7. I accordingly set aside exhibits P1, P2 and P6 and direct the first respondent - Intelligence Officer - to consider the case of the petitioner in the light of the observations contained hereinabove. The only question open for consideration will be the quantum of penalty that should be levied on the petitioner on the basis that the maximum penalty leviable is Rs. 5,000 under the latter part of section 45A(1). No other question is open for his consideration. The first respondent should pass fresh orders in the matter, after affording an opportunity to the petitioner of being heard, within a period of three months from the date of receipt of a copy of this judgment. The O.P. is allowed, as above. Petition allowed.