JUDGMENT A. K. MATHUR, C.J. - This is a reference under section 44(1) of the M.P. General Sales Tax Act, 1958 (for short "the Act") and following three questions of law have been referred by the Tribunal at the instance of the assessee for answer by this Court : (1) Whether, in the facts and circumstances of the case, the Board of Revenue was justified in confirming levy of purchase tax, under the M.P. General Sales Tax Act, on building materials before or after commencement of the business ? (2) Whether, in the facts and circumstances of the case, the Tribunal was justified in confirming the penalty imposed under section 17(3) of the Act ? (3) Whether, in the facts and circumstances of the case, the Tribunal was right in holding that cylinders are taxable at the rate of 10 per cent and not at the rate of 5 per cent as packing material ? 2. The applicant-assessee deals in the manufacture, purchase and sale of different types of gases. Before the assessing officer, the applicant-assessee claimed that old cylinders sold by him were taxable at the rate of 5 per cent as packing materials. The assessing officer disagreed with him on the ground that cylinders are not included in the list of packing materials specified in entry No. 15, Part II of Schedule II. The assessing officer held that cylinders were taxable at the rate of 10 per cent. The period relates to from October 1, 1982 to September 30, 1983. The applicant purchased building materials like bricks, gitti, etc., for repair and maintenance of building from unregistered dealers. The purchase price of building materials was assessed assessed to purchase tax under section 7(1) of the Act by the assessing officer. The assessing officer found that the applicant-dealer filed returns late without sufficient cause and also did not deposit monthly tax according to rule 27(3) of the M.P. General Sales Tax Rules, 1959 (for short "the Rules"). For these two reasons, penalty in the sum of Rs. 22,210 was imposed under section 17(3) of the Act. The quantum of penalty was calculated on the basis of delay. Aggrieved by this order of assessment passed by the assessing officer, an appeal was preferred before the Appellate Deputy Commissioner and the same was also rejected. The assessee approached the Tribunal. The Tribunal also rejected the appeal. 22,210 was imposed under section 17(3) of the Act. The quantum of penalty was calculated on the basis of delay. Aggrieved by this order of assessment passed by the assessing officer, an appeal was preferred before the Appellate Deputy Commissioner and the same was also rejected. The assessee approached the Tribunal. The Tribunal also rejected the appeal. Hence, the aforementioned three questions of law have been referred by the Tribunal at the instance of the assessee for answer by this Court. 3. So far as the first question with regard to purchase tax on the building materials before or after commencement of the business is concerned, it is true that every dealer who in the course of business purchases any goods specified in Schedule II is liable to be taxed. The assessee had purchased building materials to be used for repair, renewal and maintenance which was not in the course of his business. The business of the assessee was manufacture of gases and the building materials was purchased by him for repair and construction of the building. Therefore, it cannot be said that this materials was necessary and required in the course of his business. 4. The business of the assessee is manufacture of gases and, therefore, we have to look into the basic aspect whether this building material which had been purchased by the assessee for purposes of maintenance of building, becomes a necessary material in the course of his business. In our opinion, it is not so. A similar view has been taken by this Court in the case of Perfect Pottery Co. Ltd. v. Commissioner of Sales Tax, M.P. [1990] 76 STC 475; (1989) 22 VKN 451 , wherein in somewhat similar circumstances, this Court relying on earlier decision in the case of C.S.T., M.P. v. Satna Cement Works, Satna (1984) 17 VKN 260, held that purchase of building material for repairs, renewal and maintenance of building cannot be said in the course of business and is not liable to purchase tax under section 7 of the Act. In view of the consistent view of this Court that purchase of building materials for repairs, renewal expansion and maintenance of building cannot be said to be an activity in the course of business and is not liable to purchase tax, we answer question No. 1 in favour of the assessee and against the Revenue. 5. In view of the consistent view of this Court that purchase of building materials for repairs, renewal expansion and maintenance of building cannot be said to be an activity in the course of business and is not liable to purchase tax, we answer question No. 1 in favour of the assessee and against the Revenue. 5. As regards the second question with regard to levy of penalty under section 17(3) of the Act, learned counsel Shri Shrivastava, appearing for the assessee very strongly urged that the such a penalty cannot be imposed. He invited out attention to section 17(3) of the Act which reads as under : "Section 17. Returns........... (1).......... (2)............ 5. As regards the second question with regard to levy of penalty under section 17(3) of the Act, learned counsel Shri Shrivastava, appearing for the assessee very strongly urged that the such a penalty cannot be imposed. He invited out attention to section 17(3) of the Act which reads as under : "Section 17. Returns........... (1).......... (2)............ (3) If - (a) a dealer fails whether sufficient cause to comply with the requirements of a notice issued under sub-section (1); or (b) a registered dealer fails without sufficient cause to pay the amount of tax in the manner prescribed under sub-section (2) of section 22 or to furnish his return under sub-section (1) or revised return under sub-section (2) for any period in the manner and by the date prescribed thereunder or while furnishing the return fails to furnish along with the return, the proof of payment as required by sub-section (1-A); or (c) a registered dealer fails to furnish return, the Commissioner may after giving such dealer a reasonable opportunity of being heard, direct him to pay, by way of penalty, - (i) in the case referred to in clause (a), in addition to any tax payable by him a sum not exceeding fifty rupees for each occasion of the default, subject to a maximum of five hundred rupees in each case; (ii) in the case referred to in clause (b), in addition to the amount of tax, if any, payable by him a sum equal to one per cent of the tax for every month or part thereof for the first six months and 1.5 per cent for the next six months of the first year during which the default continued and thereafter 2 per cent of the tax for every month or part thereof during which the default continued but not exceeding in aggregate 25 per cent of the tax which may be assessed on him under section 18 and where no tax is payable, a sum not exceeding one hundred rupees; and (iii) in the case referred to in clause (c), a sum not less than 15 per cent and not exceeding 35 per cent of the tax assessed." According to section 17(3)(b), if a registered dealer fails without sufficient cause to pay the amount of tax in the manner prescribed under sub-section (2) of section 22 and to furnish his return under sub-section (1) or revised return under sub-section (2) for any period in the manner and by the date prescribed thereunder or while furnishing the return fails to furnish along with the return the proof of payment as required by sub-section (1-A), then penalty can be levied on the assessee. Sub-section (2) of section 22 of the Act says that before any registered dealer furnishes any return required by sub-section (1) of section 17, he shall pay into a Government treasury in the prescribed manner the full amount of tax due from him under this Act according to such return. 6. Rules have been framed under the Act, known as M.P. General Sales Tax Rules, 1959. Rule 27 of the Rules prescribed payment of tax. According to sub-rule (2) of rule 27 of the Rules prescribes that every dealer who is ordinarily liable to pay tax under the Act at the rate of rupees six thousand per quarter or rupees twenty-four thousand per annum, or above, and who is required to furnish quarterly returns shall pay before the 10th of the second and third month respectively of every quarter an amount equal to the actual amount of tax payable by him for the first and second month of that quarter, or 1/3rd of the tax deposited in respect of the corresponding quarter of the preceding year. The balance of the amount of tax due from him for a quarter, according to the return, shall be paid on or before the date prescribed for furnishing of such return. Shri Shrivastava, learned counsel for the assessee, submitted that since manner has not been prescribed either under sub-section (3) of section 17 of the Act or sub-section (2) of section 22 of the Act, therefore, the assessee cannot be visited with penalty for the amount of tax as required under rule 27(2) of the Rules. It may be relevant to mention here that in order to maintain fiscal discipline, no amount of latitude can be permitted in payment of tax. 7. Section 17(3) if the Act clearly says that the delayed payment of tax will be visited with the penalty. It also clearly contemplates that tax shall be paid by the date prescribed and section 22(2) says that the amount shall be deposited into Government treasury in the manner prescribed and the prescribed manner has been provided by the Rules framed by the State of M.P. under the Act. Rule 27 of the Rules speaks of payment of tax before the 10th of the second and third month respectively of every quarter. Rule 27 of the Rules speaks of payment of tax before the 10th of the second and third month respectively of every quarter. From reading of these provisions together, it transpires that it is an obligation on the part of the assessee to pay tax within time. Sub-section (2) of section 22 of the Act also lays down that the tax shall be paid at such intervals as may be prescribed. The word "prescribed" has to be read as per the rules and the rules provides for payment of tax monthly. It is obligatory on the part of the assessee to pay tax as per the rules and if he does not deposit, then he will be visited with penalty as per section 17(3)(b) of the Act. Learned counsel for the assessee has laid much stress on the decision given by the Indore Bench in the case of Sanghi Brothers (Indore) Ltd. v. Commissioner of Sales Tax, M.P. [1997] 107 STC 72 supra; (1996) 29 VKN 369. With great respect, their Lordships had no occasion to independently decide the issue and they have only quoted Full Bench decision of the Tribunal and proceeded to decide the matter. We have examined the matter independently and also the view of the Full Bench of the Tribunal. The view taken by the Tribunal does not appear to lay down correct law. The Tribunal has observed that section 17(3) of the Act does not incorporate that non-payment of monthly tax or late payment of tax shall be visited with penalty. That is not the correct view. As we have already detailed above, reading of section 17(3), and section 22(1) and (2) of the Act with rule 27 of the Rules clearly transpires that the rules have prescribed that the tax has to be paid monthly as required under rule 27 and that should be treated as part of the statute as the rules have been framed under the Act. The Act itself does not lay down the time period but it has been laid down that the tax shall be paid in the manner and by the date prescribed. The rules prescribed the date and time. The Act itself does not lay down the time period but it has been laid down that the tax shall be paid in the manner and by the date prescribed. The rules prescribed the date and time. Once it is prescribed under the rules framed under the Act of 1958, then it becomes the obligation on the part of the assessee to deposit the tax and non-depositing of tax as required by rule 27 shall be liable to be visited with penalty. Thus, we are of the opinion that the view taken by the Full Bench of the Tribunal is not correct view of law. Hence, the question No. 2 is answered in favour of Revenue and against the assessee. 8. Now coming to the third question which relates to cylinders - whether the cylinders can be considered to be packing materials or not, suffice it to say that the cylinders are the containers for the grass and they are packing material and there cannot be two opinion in the matter. In this connection, Division Bench of this Court has already taken the view in the case of same parties : Eastern Air Products v. Commissioner of Sales Tax [1997] 107 STC 90 supra; 1995 MPLJ 14 , that cylinders are the packing materials within the inclusive definition covered by phrase "empty barrels". Hence, this question is answered in favour of the assessee and against the Revenue. 9. As a result of above discussion, we answer question Nos. 1 and 2 in favour of assessee and question No. 3 against the assessee and in favour of Revenue. Reference answered accordingly.