JUDGMENT K. J. JOSEPH. - This original petition has come up before this Court on January 21, 1994. Since neither the petitioner nor the counsel for the petitioner were present, I dismissed the original petition for default. C.M.P. No. 3299 of 1994 was filed by the petitioner for restoration of the original petition and for setting aside the dismissal of the original petition for default. The petition is supported by an affidavit by the learned counsel appearing on behalf of the petitioner. I see absolutely no justification for not accepting the contention and statements contained in the affidavit filed by the learned counsel for the petitioner. In the light of the statements contained in the affidavit filed in support of C.M.P. No. 3299 of 1994, the order of dismissal passed by this Court on January 21, 1994, is set aside. I proceed to hear the matter on merits. 2. I heard the learned counsel for the petitioner and the learned Government Pleader also. The petitioner is a partnership firm registered under the Partnership Act. The same has been registered as a small-scale industrial unit functioning in Industrial Estate, Kollakkadavu, Mavelikkara. It is an assessee for sales tax on the files of the first respondent. 3. It is the case of the petitioner that for encouraging rubber based industries, engaged in Kerala, the Government of Kerala has passed an order as G.O. Ms. No. 124/88/1D dated August 31, 1988, wherein the Government have decided to give concession to promote rubber industry in the matter of reduction of sales tax from 10 per cent to 3 per cent. It is the case of the petitioner that the petitioner has been remitting the tax at 3 per cent as directed in exhibit P1 Government Order. Thereafter, the Sales Tax Officer, Mavelikkara, the first respondent, has issued exhibit P2 notice to the petitioner stating that the rate of tax applicable for rubber products from July 1, 1987, is 10 per cent and therefore, he had directed the petitioner to remit the balance tax due within seven days of receipt of the said notice with interest due therein. According to the first respondent for the years 1987-88 to 1989-90 the petitioner had been paying only 3 per cent sales tax for the sale of rubber products instead of 10 per cent tax due under section 5 of the Kerala General Sales Tax Act, 1963. 4. According to the first respondent for the years 1987-88 to 1989-90 the petitioner had been paying only 3 per cent sales tax for the sale of rubber products instead of 10 per cent tax due under section 5 of the Kerala General Sales Tax Act, 1963. 4. Immediately on receipt of exhibit P2, the petitioner has submitted exhibit P3 representation before the first respondent stating that he is entitled to get exemption that has been granted by the Government as per exhibit P1 Government order. He also said that he has paid the sales tax at 3 per cent. In the light of the Government Order, there is absolutely no justification for the enhanced levy as per exhibit P2 order passed by the first respondent, is also the case of the petitioner. 5. Not being satisfied with the said explanation, the first respondent has issued exhibit P4 dated October 30, 1989, directing the petitioner to pay the sales tax at 10 per cent instead of 3 per cent already remitted by him. Immediately on receipt of the same, the petitioner has made another representation, exhibit P5, requesting the officer therein 30 days time to the petitioner before taking a decision in the matter. Thereafter, the assessing authority has issued a notice provisional (annual demand) under rule 18(3) of the Rules demanding tax at 10 per cent for the total turnover of Rs. 10,49,332.32 from the petitioner for the years 1987-88 and 1988-89. The petitioner therefore, questioned the validity of exhibits P2, P4 and P8 notices before this Court and prayed for issuance of a writ of certiorari or other appropriate direction or order quashing the same and also for a writ of prohibition prohibiting the respondent from demanding or collecting the amount of tax mentioned in exhibits P4 and P6 notices. Petitioner also prays for a declaration that exhibit P1 notification is binding on the respondents and they are bound to pay only at 3 per cent for the rubber products and prays for consequential reliefs. 6. Even though notice was served on the respondents as early as on February, 1990, no counter-affidavit has been filed in this case on behalf of the respondents. 7. 6. Even though notice was served on the respondents as early as on February, 1990, no counter-affidavit has been filed in this case on behalf of the respondents. 7. Learned counsel appearing on behalf of the petitioner has submitted before me that in the light of exhibit P1 Government Order, the petitioner is liable to pay only annual tax at 3 per cent and not 10 per cent as prescribed under section 5 of the Kerala General Sales Tax Act. Learned counsel further submits that exhibit P1 shall be deemed to have been issued by the 4th respondent in exercise of the powers conferred under section 10 of the Kerala General Sales Tax Act and therefore the petitioner is justified in acting on the basis of exhibit P1 Government Order and paying tax only at 3 per cent. The learned counsel also submits that the present demand made in exhibits P2, P4 and P6 is clearly illegal and against the provisions contained in exhibit P1 Government Order which may be considered as a notification issued under section 10 of the Act. 8. I heard the Senior Government Pleader, Shri V. C. James. According to him, it is a matter to be considered by the assessing authority at the time of final assessment. He has also stated that the Government have the power to issue exhibit P1 Government Order. In the decision reported in Pournami Oil Mills v. State of Kerala [1987] 65 STC 1; AIR 1987 SC 590 , the Supreme Court has considered the earlier notification wherein the Supreme Court has held "where the authority making an order has power conferred upon it by statute to make an order made by it and the order is made without indicating the provisions under which it is made, the order should be deemed to have been made under the provisions of the Act". Even if it has not mentioned in exhibit P1 order, that should be deemed to have been issued in this case under section 10 of the Kerala General Sales Tax Act. 9. Exhibit P1 is the Government Order Ms. No. 124/88/1D dated August 31, 1988, wherein the Government had passed orders to the effect that the State Government had been thinking to give further encouragement for setting up more rubber industries in the State. 9. Exhibit P1 is the Government Order Ms. No. 124/88/1D dated August 31, 1988, wherein the Government had passed orders to the effect that the State Government had been thinking to give further encouragement for setting up more rubber industries in the State. A consensus arrived at the meeting was that there was need for giving some concessions and relief to the new entrepreneurs for starting rubber industries in the State. Therefore the Government considered various suggestions made by the rubber manufacturers and technical experts and for deciding to extend the following concessions to promote industries : 1. Rubber to be used for new industries in Kerala will be exempted from levy of purchase tax; 2. An additional capital subsidy of 5 per cent will be given to new rubber industries to be set up in Kerala and this subsidy will be in addition to the Central/State subsidy now available to the industries; 3. Sales tax on furnished rubber goods produced from factories in Kerala will be reduced to 3 per cent. 10. From exhibit P1 it can be seen that the Government have issued orders to the effect that the sales tax on furnished rubber goods had been reduced to 3 per cent as claimed and enjoyed by the petitioner in this case. There is absolutely no justification for the State to contend that this notification has not been issued under section 10 of the Kerala General Sales Tax Act. In the light of the decision reported above, it shall be declared that exhibit P1 notification is a notification issued under section 10 of the Act and the liability of the petitioner is only 3 per cent finished rubber goods produced from factories in Kerala. 11. The learned Government Pleader has submitted before me that this is a matter finally to be decided by the sales tax authorities at the time of final assessment. It is true that the final assessment has to be made by the sales tax authorities. But there is no justification to demand more than 3 per cent tax for the relevant period from the petitioner in respect of the finished rubber goods in the light of exhibit P1 Government Order. 12. It is true that the final assessment has to be made by the sales tax authorities. But there is no justification to demand more than 3 per cent tax for the relevant period from the petitioner in respect of the finished rubber goods in the light of exhibit P1 Government Order. 12. In the light of my above finding, I set aside exhibits P2, P4 and P6 orders and notices made by the respondents demanding payment of tax at 10 per cent in respect of finished rubber products from the petitioner for the relevant years. I also declare that for the relevant period, the petitioner is liable to pay only 3 per cent of the sales tax on finished products. There cannot be any recovery for any amount excess than the 3 per cent levy by way of sales tax from the petitioner. The original petition is allowed to that extent. 13. It is perfectly open for the assessing authority to take into consideration the effect of exhibit P1 notification as declared by this Court in this judgment and make final order of assessment accordingly. In the light of the findings entered into by this Court in this original petition, the original petition is allowed, but in the circumstances, there will be no order as to costs. Petition allowed.