JUDGMENT A. K. MATHUR, C.J. - The petitioner has by this petition prayed that the third proviso to section 3(1) of the M. P. Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 as amended by Act No. 24 of 1982 may be declared to be invalid and annexures A and D may be quashed. The petitioner has also prayed that the assessment and penalty imposed under section 43 of the Sales Tax Act read with section 13 of the Entry Tax Act may be set aside. 2. Suffice it to say that so far as validity of section 3(1) of the Act of 1976 is concern, the same has been upheld by this Court in the case of National Pure Food Suppliers v. State of Madhya Pradesh [1995] 28 VKN 247. Therefore, the challenge to the validity of third proviso to section 3(1) of the Entry Tax Act does not survive. 3. Shri B. L. Nema, learned counsel for the petitioner, submitted that it is true that the validity of the third proviso to section 3(1) of the Entry Tax Act has been upheld by this Court, still the penalty should not be levied on the assessee for the simple reason that the assessee was bona fide pursuing remedy and there was no mens rea for committing evasion of the tax. In support of this contention, learned counsel invited our attention to the decision in the case of the Cement Marketing Co. of India Ltd. v. Assistant Commissioner of Sales Tax, Indore [1980] 45 STC 197 (SC). We have heard counsel for the parties and perused the record. 4. So far as challenge to the validity of the third proviso to section 3(1) of the Entry Tax Act is concerned, it has already been upheld by this Court. The said proviso clearly lays down that in case the goods which have entered into local area have not suffered tax, then the person who has purchased the goods is under a liability to pay the tax and the penalty. By virtue of the proviso, therefore, the petitioner is under obligation to pay the entry tax and the penalty also. Learned counsel submitted that in identical situation, their Lordships of the Supreme Court in the case of Cement Marketing Co. By virtue of the proviso, therefore, the petitioner is under obligation to pay the entry tax and the penalty also. Learned counsel submitted that in identical situation, their Lordships of the Supreme Court in the case of Cement Marketing Co. of India Ltd. v. Assistant Commissioner of Sales Tax [1980] 45 STC 197 have taken the view that in a bona fide situation, the penalty should not be levied. We have considered the ration of that case. 5. It may be stated that in the aforesaid case, serious question regarding interpretation of the sale price as defined in section 2 of the M.P. Act came up for consideration that the amount of fright did not fall within the definition and was not liable to be included in the taxable turnover of the assessee. Their Lordships observed that the contention was not a frivolous one and it was not raised merely for the purpose of avoiding tax liability. It was observed by their Lordships that it was a highly arguable contention which required serious consideration by the court. In these circumstances, their Lordships of the Supreme Court set aside the penalty. But in the present case, there is hardly any issue with regard to third proviso to section 3(1) of the Entry Tax Act. It clearly stipulated in the third proviso that in view of entry of goods which had not suffered tax and the goods which were found with the last purchaser, he was under obligation to pay tax. Therefore, we are of the opinion that there was no such serious argument in issue, so far as the third proviso to section 3(1) is concerned. More so, the third proviso has already been upheld by this Court and hence, the assessee cannot escape liability of payment of tax as well as penalty in accordance with law. 6. In the result, the petition being bereft of merits is dismissed. There shall be no order as to cost. Security amount if any be refunded to the petitioner. Petition dismissed.