JUDGMENT A. R. TIWARI, J. - The Tribunal (Board of Revenue), at the instance of the Commissioner of Sales Tax, Madhya Pradesh, referred the undernoted question of law under section 44(1) of the M.P. General Sales Tax Act, 1958, for answer by this Court : "Whether, under the facts and circumstances of the case, the Board of Revenue was justified in holding that section 38(3) of the M.P. General Sales Tax Act, 1958, requires the splitting up of demand on account of extra demand for tax assessed and that on account of penalty under section 17(3) of the Act for determining amount to be deposited, on the basis of different sub-sections of section 38(3), for admission of appeal ?" 2. Briefly stated, the facts of the case are that the Additional Sales Tax Officer, Ratlam, passed the assessment order on November 26, 1983 (annexure B) in Case No. 103/80-81 (entry tax) against the assessee-non-applicant for the period July 1, 1979 to June 30, 1980, under the Entry Tax Act in the absence of returns. The non-applicant was assessed to tax (Rs. 3,652.44). The penalty under section 17(3) of the aforesaid Act was also imposed on the assessee. The amount of penalty was quantified at Rs. 900. Penalty of Rs. 50 was also imposed under rule 69-A of the M.P. General Sales Tax Rules, 1959. The assessee filed an appeal before the Appellate Deputy Commissioner of Sales Tax, Ujjain. A show cause notice was issued stating that 75 per cent of total demand (Rs. 4,602.44) should have been deposited and proof of such deposit should have been given in the memorandum of appeal. The assessee submitted the written explanation that he had deposited 75 per cent of the amount of demand on account of tax (Rs. 3,652.44) and 25 per cent of the amount of demand on account of penalty under section 17(3) (Rs. 900). The appellate authority did not find this in order holding that the appellant was required to deposit the amount in terms of section 38(3)(b)(i) of the aforesaid Act. He, therefore, dismissed the appeal on account of non-compliance on March 6, 1984 (annexure C). The assessee then filed second appeal before the Tribunal. The Tribunal held that the deposit made was proper. It, therefore, set aside the order dated March 6, 1984 and remanded the case for hearing on merits (annexure D). He, therefore, dismissed the appeal on account of non-compliance on March 6, 1984 (annexure C). The assessee then filed second appeal before the Tribunal. The Tribunal held that the deposit made was proper. It, therefore, set aside the order dated March 6, 1984 and remanded the case for hearing on merits (annexure D). The Commissioner of Sales Tax then submitted the application to the Tribunal seeking reference. The Tribunal stated the case and referred the aforesaid question of law. 3. We have heard Shri K. K. Gupta, learned Government Advocate for the Commissioner of Sales Tax. None appeared for the non-applicant-assessee. 4. Shri Gupta submitted that the appellate authority was justified in holding that the requisite level of the balance was required to be deposited and splitting up the total balance due from the dealer into tax and penalty and application of different percentage of deposit under section 38(3) of the M.P. General Sales Tax Act for admission of appeal was not proper. He, therefore, contended that the Tribunal committed an error of law in accepting the split up for different percentages of deposit in regard to tax and penalty and thus, remanding the matter for hearing on merits. 5. In pursuit of his submission Shri Gupta submitted that this question of law is already answered by this Court in the decision reported in [1990] 76 STC 53; (1988) 21 VKN 327 (Commissioner of Sales Tax, M.P. v. Balaji Cotton Co.). In the aforesaid decision, this Court has held as under : "Having given our conscious consideration to the matter, we are of the opinion that the Tribunal failed to appreciate that whenever an appeal was preferred from an order imposing penalty, the appellant was required to pay one half of the total balance due from the appellant. The expression "such balance" occurring in section 38(3)(c) has reference to 'the total balance due' from the dealer as specified in section 38(3). The assessee, in the instant case, had preferred appeal against an order of assessment whereby penalty was also imposed under section 43 of the Act. The expression "such balance" occurring in section 38(3)(c) has reference to 'the total balance due' from the dealer as specified in section 38(3). The assessee, in the instant case, had preferred appeal against an order of assessment whereby penalty was also imposed under section 43 of the Act. Clause (c) of section 38(3) was, therefore, clearly attracted and unless one half of the total balance due from the assessee, which included the balance of the amount of tax found payable by the assessee and the amount of penalty imposed on the assessee was paid, the appeal preferred by the appellant could not be admitted. The Tribunal, therefore, was not justified in holding that the appeal before the Appellate Deputy Commissioner could not be rejected on account of non-payment of 50 per cent of the total demand of tax and penalty due from the assessee. Our answer to the question referred to this Court is, therefore, in the negative and against the assessee." 6. In view of the aforesaid decision, the matter under consideration stands concluded. The deposit has to be in regard to "balance". 7. It is accordingly held that the Board was not justified in splitting up of the demand on account of tax and on account of penalty. The expression "balance" meant total balance. 8. In the result, the question is answered in the negative, i.e., in favour of the Revenue and against the assessee. 9. This reference is answered accordingly, but with no order as to costs. 10. A copy of this order under the signature of the Registrar and under the seal of the High Court be transmitted to the Tribunal for information. Reference answered in the negative.