( 1 ) PETITIONER in these petitions is challenging the order passed by the third respondent annexures U1 to U5 and the consequential demand notices annexures-W1 to W8. Petitioner is also seeking for a direction to the respondent that the power under sec. 28 (6) of the KST Act cannot be exercised by the authorities when a dealer opts for either of the schemes under the notifications (1) GO. NO. CI 30 SPC 96 DTD 15-3-1996 and (2) Go No. FD 32 CDSL 96 (I) DTD 15-11-1996 vide annexures-A and B. Petitioner also questions the provisions contained in Explanation V93) annexure-III of the notification dtd 15-11-1996. Petitioners last prayer is for a direction to the respondents to obtain a decision at the hands of the State level Committee in the light of annexures-A and B. ( 2 ) PETITIONER-COMPANY is engaged in the business of manufacture and sale of soft drink beverages. Petitioner is a registered dealer. The State Government with a view to accelerate the industrial growth of State of Karnataka and particularly the backward areas issued a Government Order dtd 15-3-1996 setting out the industrial policy for the State of Karnataka for the period 1996-2001. The policy provided various incentives and concessions in this regard. Policy provided for option of either sales tax exemption in respect of tiny/ssi/medium and large scale sectors for the period indicated in the Government Order subject to a ceiling of the amount equivalent to 100% of the value of fixed assets. According to petition averments the Government Order provided for a decision to the State Level Committee with regard to interpretation of the Government Order. " (1) The second notification was issued on 15-11-1996 in exercise of the powers conferred under Sec. 19-C of the Act. The Government exempted the tax in respect the goods manufactured and sold by the unit mentioned in Col. 2 of the table annexed thereto for a period of 5 years from the date of commencement of commercial production. The first notification which was the basic notification did not contain any such condition. Explanation (v) (3) of the second notification contained some conditions subject to which the exemption was to be available. The said explanation contained one of the conditions which reads as under; explanation V 1. This notification shall not apply to: a ). . b ). . c ). . d ). . e ). . Explanation (v) (3) of the second notification contained some conditions subject to which the exemption was to be available. The said explanation contained one of the conditions which reads as under; explanation V 1. This notification shall not apply to: a ). . b ). . c ). . d ). . e ). . f ). . 2. . 3. When an industrial unit or a non-manufacturing unit exercises option for tax exemption and collects any amount by way of tax or purporting to be by way of tax, it shall forthwith cease to be eligible for tax exemption. For the period during which such amount were collected and subsequently for the remaining prescribed period of eligibility, such units shall be eligible only for tax deferment. " (2) Annexure-B is the second notification. Petitioner started a new industrial unit for manufacture of soft drinks at Teppada Begur Village, Nelamangala Taluk, Bangalore Rural District, Karnataka and made substantial capital investment. Petitioner obtained a certificate from the Director with regard to eligibility in terms of Annexure-C. Petitioner in terms of the notification, according to petition averments, informed the customers that the sales transaction was exempted from sales tax by the Government of Karnataka in terms of the notification dtd 15-11-2003 and therefore no sales tax was payable or collected by the petitioner. In respect of such sales from the Nelamangala Unit, the amount collected as sales tax as shown in the invoices was nil. Sales invoices which embodied the contract between the petitioner and its buyers specifically carried the legend Sales Tax exemption vide GO NO. CI/30/spc/96 dtd 15-3-1996. Invoice copies are filed by the petitioner. The petitioner also operates other industrial unit in the State of Karnataka where no such exemption is available. Petitioner charges applicable sales tax separately and deposits such recovered tax with the State of Karnataka. Petitioner maintains books of accounts in accordance with law. The consideration amount received in respect of Kumbalgod unit is credited to the sales realization account and the amount paid as sales tax is debited to the sales tax account. In respect of Nelamangala Unit the amount recovered from the customers as consideration amount is credited to the sales realization account and since no amount is debited to the sales tax amount is collected by way of sale tax no amount is debited to the sales amount. In respect of Nelamangala Unit the amount recovered from the customers as consideration amount is credited to the sales realization account and since no amount is debited to the sales tax amount is collected by way of sale tax no amount is debited to the sales amount. Neither in the invoice nor in their books of accounts there is any mention that an amount is recovered by way of tax. Extracts of the accounts and the certificate from the auditor are produced at annexure-G. Petitioner was obliged to keep track of the period as well as the extent of the exemption availed by him and the remainder quantum of the exemption availed by him and the remainder quantum of the exemption that remained to be availed. The notification fixed the limit for medium and large scale industries as five years from the date of commencement of commercial production subject to a ceiling of the amount equivalent to 100% of value of fixed assets invested by him in the new plant and then ensure that the exemption is claimed only up to that extent. Petitioner has to notionally assume what sales tax would have been levied but for this exemption and keep record of this figure. Petitioner has filed the sales tax maintenance account in this regard. (3) The assessing authority completed the assessment proceedings for the assessment year and granted exemption on the turnover relating to new unit showing the eligibility of exemption and quantification of utilization of exemption. Third respondent thereafter visited the business premises of the petitioner at Nelamangala unit and obtained a statement from the person in charge of the business premises. Thereafter a notices dtd 24-1-2002 for the years 1997-98 to 2001-02 were issued to the petitioner alleging that the element of KST/cst was inherent in the sale price. Based on such allegation, the notice concluded that the petitioner had committed offence under Sec. 29 (2) (f) and 29 (2) (e) of the Act, 1957. Notice dtd 24-1-2002 is at annexure-K. A detailed reply was submitted by the petitioner in terms of Annexure-L. Respondents raised further queries in terms of Annexure-M. They were answered in terms of Annexure-N. Thereafter notices dtd 31-8-2002 under Sec. 28 (6) were issued proposing to assess provisionally the turnover of the goods cleared by Nelamangala Unit claiming exemption. Notice dtd 24-1-2002 is at annexure-K. A detailed reply was submitted by the petitioner in terms of Annexure-L. Respondents raised further queries in terms of Annexure-M. They were answered in terms of Annexure-N. Thereafter notices dtd 31-8-2002 under Sec. 28 (6) were issued proposing to assess provisionally the turnover of the goods cleared by Nelamangala Unit claiming exemption. Show cause notices Annexures-P1 to P5 were also issued alleging that the petitioner had collected tax on the exempted turnover in contravention of the conditions laid down in the notification dtd 15-11-1996 and proposing to recover the tax collected and also proposing to levy penalty under Sec. 18 of the Act. Petitioner submitted its interim reply and thereafter submitted a detailed reply in terms of annexures-Q, R and S. Petitioner thereafter appeared in person and made his submissions. The third respondent assessing authority thereafter passed five similar orders dtd 11-11-2002, Annexures-U1 to U5, followed by consequential demand notices annexures-W1 to W8 dtd 12-11-2002 issued by the fourth respondent. Proceedings were also initiated to recover the tax in terms of Annexure-AB dtd 4-12-2002. Petitioner with these facts is before me seeking for various prayers. ( 3 ) NOTICE was issued and respondents have entered appearance. They have filed a very detailed statement of objections. They say that the petitioner participated in the proceedings by way of reply and having done so, petitioner cannot approach this court under Art. 226 of the Constitution. According to them, an appeal remedy is available to the petitioner in terms of Sec. 20 of the Act and this court is not to undertake any investigation in these matters. (1) Coming to the merits of the matter, respondents say that the scheme granting incentive has to be read as a whole. They refer to the scheme to contend that the condition of the incentive scheme require that the option either for exemption or for deferred payment can be exercised only before production commences. The petitioner chose the option of exemption of tax. When its lapses were discovered and the steps were taken by the Government to recover the tax in respect of which default has been made, petitioner cannot seek refuge under the plea of deferred payment. This plea, if accepted, would make the incentive scheme prevail over the mandatory requirement to observe the provisions and obligations under the sales tax Act. When its lapses were discovered and the steps were taken by the Government to recover the tax in respect of which default has been made, petitioner cannot seek refuge under the plea of deferred payment. This plea, if accepted, would make the incentive scheme prevail over the mandatory requirement to observe the provisions and obligations under the sales tax Act. They further say that petitioner cannot approbate and reprobate. Petitioner cannot say that no tax has been collected and yet plead at the same time that the deferral clause comes into effect, totally ignoring the important circumstance that the question of deferred payment of tax can only arise only if tax has been collected and not paid. They further say that the method of accounting of the petitioner is only to violate the Act. They further say that the present situation comes under Sec. 28 (6) 1 and 3. The satisfaction of the conditions (1) to (4) are not cumulative. The satisfaction of any one of them is adequate for the purpose. They further say that the Bidadi unit is virtually closed and the entire production has been shifted to Nelamengala Unit. This again affirms the illegal manner in which the operations for avoiding payment of sales tax though collected have been conducted by the petitioner. (2) They also say that the contention with regard to interpretation by the State Level Co-ordination Committee is misleading. Conditions of Sec. 28 (6) are mis-interpreted by the petitioner. State is not bound to accept the mode of accounting which has been claimed to be adopted by the petitioner, as a glib explanation for its failure to pay the tax collected. (3) They further say that the third respondent inspected the petitioners business premises and found that the petitioner availed itself of the benefit of tax exemption on the sale of aerated water manufactured at Nelamangala plant under 1996-2001 package of tax incentives and concessions and violated the conditions of the notification dtd 15-11-1996 by collected tax on the exempted turnover and concealed the same in the sale price and as such the petitioner ceases to be eligible for exemption during the period in which such taxes were collected. The inspecting authority after investigating in to the claim of tax exemptions availed on the turnover of transportation charges by the petitioner, has come to a conclusion that the turnover of transportation charges is nothing but presale expenditure and hence part of the sale price itself and hence, not an exempted turnover under the Act. They further submit that only after affording reasonable opportunity to the petitioner, the impugned orders/notices have been issued. Respondents further say that the petitioner has misused the incentives in a manner which defeats the very purposes for which the state granted the benefits. They rely on the judgment of this Court in Spencer Companys case reported in 26 STC 283 in support of their case They also refer to various other case laws. In conclusion they want the petition to be dismissed. A lengthy rejoinder has been filed by the petitioner. ( 4 ) HEARD Sri Lodha, learned counsel for the petitioner. He elaborately argued at great length to contend that the respondents are wrong in fastening the tax liability in the given circumstances. He invited my attention to a policy dtd 15-3-1996 providing for concession/incentives. According to him sales tax deferment and sales tax exemptions are provided in the said policy. He refers to the second notification to contend that the first notification is the mother and the second notification cannot override the first notification. In the first notification there is no such clause providing for automatic cancellation and such condition according to him is arbitrary and unsustainable. " (1) In so far as the main argument of collection by the petitioner is concerned, he explains the history of the case to contend that the Government itself granted the tax concession to the petitioner. Petitioner has two units, one taxable unit and the other one non-taxable unit. Just because the price is same it does not mean that collection is made by the petitioner as a tax. He refers to me the various invoices to contend that no tax is collected by him. In fact he refers to me Sec. 18 and other provisions to say that he could not have collected the tax. He also says that the respondents issued a notice on an earlier occasion with regard to violation and thereafter the present notice has been issued under Sec. 28 (6) of the Act. In fact he refers to me Sec. 18 and other provisions to say that he could not have collected the tax. He also says that the respondents issued a notice on an earlier occasion with regard to violation and thereafter the present notice has been issued under Sec. 28 (6) of the Act. He refers to Sec. 28 (6) 1 to 4 to contend that all the ingredients in terms of Sec. 28 (6) are missing in the case on hand. He also specifically says that any collection in terms of this section is legally unsustainable and only this court can interfere in this regard. He elaborately argues at great length as to what is meant by collection of tax. His main thrust of argument is that there is no collection of tax by the petitioner in terms of the several case laws and in the light of given circumstances. (2) In so far as maintainability of the petition is concerned, learned counsel would say that since he has challenged clause (iii) of the second notification writ is the only remedy available to the petitioner. His further submission is that though the order is appealable since the year has come to an end, no purpose is served by filing appeal in terms of the orders passed by this Court in similar circumstances, with regard to no further proceedings, after the assessment year coming to an end. He says even otherwise, since the very conditions in terms of Sec. 28 (6) is missing, writ remedy cannot be excluded to the petitioner. Learned counsel also says that alternative plea of deferral cannot be understood as an admission of collection as suggested in the objection statement. " ( 5 ) LEARNED Advocate General appearing for the State says that the facts of the case would involve complicated questions of fact which require adjudication not by the writ court but by the fact finding authority. He further says that appeal remedy cannot be by-passed by the petitioner. He also says that as a matter of fact, the office of the company has accepted the case of the department. He files an affidavit in this regard. Petitioner has filed a revised return and the return is accepted. He further says that appeal remedy cannot be by-passed by the petitioner. He also says that as a matter of fact, the office of the company has accepted the case of the department. He files an affidavit in this regard. Petitioner has filed a revised return and the return is accepted. When the petitioner has been granted the benefits, petitioner cannot be permitted to collect tax and any such collection has to be viewed in terms of clause (iii) of the second notification. He says that the audit certificate is not sacrosanct and it requires statutory approval by the department. "learned Advocate General says that petitioner in the guise of exemption is getting himself the benefit by virtually closing the Bidadi unit in the light of tax exemption. Referring to the provisions, learned Advocate General would say that the price is inclusive of sales tax which indicates collection of tax. Alternative plea of deferral itself would show that collection is made by the petitioner. Learned Advocate General says that invoices are mis-leading and they cannot be accepted. He further says that consumer interest is to be paramount and that no benefit is flowing to the consumer. In conclusion he says that matter requires remand. " ( 6 ) IN reply learned counsel for the petitioner invites my attention to the facts again and explains that the second notification has no legs to stand in the light of the first notification and in the light of the judgment of this court. He relies on the various case laws in support of his case. ( 7 ) AFTER hearing the parties, I have carefully perused the material on record. The following points arise for my consideration; a) Maintainability b) Challenge to clause (iii) c) Jurisdiction under Sec. 28 (6) d) Relief. Reg. Maintainability ( 8 ) ADMITTEDLY petitioner is challenging the orders passed by the third respondent. The orders are passed under Sec. 28 (6) for various years. The assessment proceedings were concluded earlier and these orders are passed subsequent to an inspection and seizure of documents. It is no doubt true that these orders are appealable in terms of the statute. Maintainability ( 8 ) ADMITTEDLY petitioner is challenging the orders passed by the third respondent. The orders are passed under Sec. 28 (6) for various years. The assessment proceedings were concluded earlier and these orders are passed subsequent to an inspection and seizure of documents. It is no doubt true that these orders are appealable in terms of the statute. This Court in several cases has ruled that once the assessment year comes to an end, the right course for the authorities is to send the same or similar proceeding to the regular assessing authority for his opinion and for further action in terms of Sec. 28 (7) of the Act. Therefore in the light of this clear pronouncement of law in several cases no appeal need be filed. "i must also notice that section 28 is a special provision with regard to powers to order production of books of account and powers of inspection and seizure. Sec. 28 (6) provides for examination of books of accounts registers, records or other documents and if an officer has reason to belief that in respect of any year, the dealer has committed any acts under Sec. 28 (6) (i) to (iv) he may notwithstanding anything contained in sec. 12, 12-A, or 12-B and without prejudice to the imposition of such tax or penalty or both in the assessment or reassessment, as the case may be that may be completed by the assessing authority for that year under the said sections, provisionally assess such turnovers to tax recording reasons for such assessment. The conditions precedent for taking action under sec. 28 (6) are violations of Sec. 28 (6) (i) to (iv ). If the petitioner is able to show that there is no violation of conditions, then the officer has no jurisdiction to proceed to pass orders since his powers are circumscribed by these four conditions. Therefore it cannot be said that this petition has to be thrown out as argued by the State Government in the case on hand. The Court has to go in to the question as to whether the conditions are fulfilled or not on the admitted facts and on the peculiar facts of this case. Therefore it cannot be said that this petition has to be thrown out as argued by the State Government in the case on hand. The Court has to go in to the question as to whether the conditions are fulfilled or not on the admitted facts and on the peculiar facts of this case. I may add again that if the circumstances to those conditions are with reference to disputed facts, this Court need not entertain the petition and may relegate the petitioner to avail the remedy in terms of the law. I must also notice that the petitioner has challenged the condition No. (3) in the subsequent notification as violative of various provisions of law. Therefore notwithstanding stiff opposition, I may have to notice as to whether the challenge is permissible and whether the facts prove want of jurisdiction in terms of Sec. 28 (6) of the Act. Let me see the facts of the case to determine this issue. "reg: Challenge to clause (iii) of the second notification. ( 9 ) THE first challenge of the petitioner is to clause-3 of the second notification dtd 15-11-1996. Petitioners contention is that the first notification prevails over the second notification and the condition imposed in the second notification is ultravires the second notification. Elaborate arguments have been advanced in this regard. Let me see the notification itself to find out as to whether a case is made out by the petitioner. The Government Order dtd 15-3-1996 was issued in order to achieve the objective of industrial development of the State. The said order provided for concessions and incentives for the growth of economy of the State. Notification dtd 15-3-1996 provided for active participation of industries in development of infrastructure. It further provided for development of potential growth centers, human resources and enterpreneurship development, simplification of rules and regulations and transparent administration. Package of incentives and concessions in terms of the Policy. Various areas were classified as developed and developing areas. Investment subsidy was also provided as an incentive for economic growth. With regard to sales tax concessions for new units clause-5 of the notification reads as under; industrial Investments in the Tiny/ssi/medium and Large Scale Sectors would be provided with the option of either sales tax exemption or sales tax deferral (KST/cst ). The option is allowed one time only, at the initial stage of availing the concession. "1. With regard to sales tax concessions for new units clause-5 of the notification reads as under; industrial Investments in the Tiny/ssi/medium and Large Scale Sectors would be provided with the option of either sales tax exemption or sales tax deferral (KST/cst ). The option is allowed one time only, at the initial stage of availing the concession. "1. In so far as developing areas are concerned in respect of medium and large scale industries incentive provided to the extent of 80% of the value of the fixed assets. The validity of incentives and concessions in terms of the order is for a period of five years from 1-4-1996. It also provided for an interpretation and the decision at the hands of the State Level Co-ordination Committee. 2. The notification dtd 15-11-1996 is issued in terms of the powers conferred under Sec. 19-C of the KST Act. Clause- (3) provided for tax exemption or tax deferment. Clause- (3) with which we are concerned reads as under; when an industrial unit or a non-manufacturing unit exercising option for tax exemption and collects any amount by way of tax or purporting to be by way of tax, it shall forthwith cease to be eligible for tax exemption. For the period during which such amounts were collected and subsequently for the remaining prescribed period of eligibility, such units shall be eligible only for tax deferment. 3. The argument of the respondent that the petitioner has collected certain amount by way of tax and therefore they cease to have the benefit of the exemption in the given set of circumstances, whether factually is incorrect or not is to be questioned. According to the petitioner, clause 3 of the notification dtd 15-6-1999 runs counter to the notification dtd 15-3-1999, the second notification according to the counsel cannot run counter to the first notification. Learned Counsel relies on the judgment of this Court reported in 109 STC 265. Petitioner also says that first notification is also a notification in terms of Sec. 19 (c) and the petitioner relies on the judgment of the Supreme Court reported in 65 STC 1. It is no doubt true that the first notification may be an exemption notification but if the exemption notification is held to be supplemental in nature there is no need to quash the condition No. 3. 4. It is no doubt true that the first notification may be an exemption notification but if the exemption notification is held to be supplemental in nature there is no need to quash the condition No. 3. 4. Learned Advocate General, says that a careful reading of this clause would show that it is more beneficial to the petitioner and it is not in any way in violation of the first notification. 5. I have noticed both the notifications. The first notification did not provide for withdrawal of concessions and provides a deferral for the remaining period. Second notification only provides such action in the event of the exemption unit collecting certain amount notwithstanding exemption. This Court in 109 STC 265 has ruled as under; 34. It is not the case of the State Government that the second notification was issued with an intention to in any way supersede or impliedly repeal the first notification to the extent of any inconsistency. On the other hand, the records produced before us clearly establishes that the second notification was issued merely as a follow-up action to effectuate the industrial policy pronounced by the Government under its first notification. Therefore the second notification was merely supplementary in nature and in case of inconsistency, the words used in the second notification has to acquire its colour from the corresponding expressions used in the first notification. 6. The industrial policy read as a whole would show that a concession and incentives were granted by way of policy for an effective growth of the economy of the State. "concession/incentives cannot be without any conditions. The first notification provides for incentives and concessions and the second notification provides for certain contingencies and certain circumstances. The second notification if read along with clause 3 it would show that there is no inconsistency as sought to be made out by the petitioner. The second notification if at all in my view is only clarificatory in nature and is supplemental to the first notification. It only clarifies that in the event of collection of tax, instead of tax exemption for the whole period, deferral is permissible. It is not as though the tax concession has been entirely withdrawn. Tax deferral is provided. I do not find any inconsistency in the case on hand. It only clarifies that in the event of collection of tax, instead of tax exemption for the whole period, deferral is permissible. It is not as though the tax concession has been entirely withdrawn. Tax deferral is provided. I do not find any inconsistency in the case on hand. It cannot be said that the condition No. 3 travels beyond the first notification as argued repeatedly before me. I am unable to accept this contention. In the event of violation of concessional provisions the industries are told of its consequences by clause (iii) of the second notification. The consequence is only the deferral. It is supplemental or clarificatory in nature as held by me earlier. At any rate, I do not find any unjust act on the part of the State in introducing clause-3. After all public revenue has to be protected in the larger interest of public and it cannot be at the cost of public Taking into consideration all aspects of the matter, I deem it proper to uphold condition No. 3 as supplemental to the first notification. There is no need to quash condition No. 3. The challenge to condition No. 3 is therefore held to be unsustainable in law. Reg. Scope of Section 28 (6) of the Act. ( 10 ) TWO essential contentions are urged. The first one is that the impugned order runs counter to the provisions of Sec. 28 (6) itself and therefore it is without jurisdiction. It is a legal plea. The second contention on merits is with regard to collection by way of tax by the petitioner warranting action under sec. 28 (6) of the Act. " (1) Parties have argued elaborately on this issue. The learned counsel for the petitioner essentially invites my attention to Sec. 28 (6) condition 1 to 4 to contend that no condition as such is available warranting any proceedings in a case like this. His further submission is, assuming that Sec. 28 (6) is available even then there is no collection by way of tax in terms of a notification requiring any additional tax or requiring withdrawal of concession or providing deferral in terms of the material on record. He refers to various judgments in this regard. Learned Advocate General countering this argument would say that the conditions are available to the State. He refers to various judgments in this regard. Learned Advocate General countering this argument would say that the conditions are available to the State. His further submission is that exemption cannot be mis-used or abused as it has to sub serve the public interest. He invites my attention to the material facts to contend that the tax is part of the price and it would indicate that tax has been collected by the petitioner. After eleborate argument, let me see as to whether this order is with jurisdiction in terms of the power confirmed under Sec. 28 (4) of the Act. If the answer is Yes, then the question on merits needs consideration. If the answer is, no then this petition has to succeed on the ground of want of jurisdiction and power only, in the given set of circumstances sec. 28 (6) reads as under; where Such Officer upon examining the accounts, registers, records or other documents seized under sub-section 3, has reason to believe that in respect of any year, the dealer has,- i) either failed to declare the whole or part of the turnover recorded in such accounts, registers, records or other documents in the return or the statements submitted in Form 3; or (ii) failed to account for any turnover in the accounts, registers, records or other documents maintained in the regular course of his business where the return or the statement in form No. 3 is not submitted, or (iiii) claimed exemption on the turnovers liable to tax in the return or the statements submitted in form 3; or (iv) admitted to pay a lower rate of tax than that applicable under this Act on the turnovers declared in the return or the assessments submitted in Form No. 3. "" (2) Petitioner asserts in the petition that the third respondents has exercised its jurisdiction by invoking sec. 28 (6) (1) alleging that the petitioner has collected tax and has not disclosed the same in the return. "" (2) Petitioner asserts in the petition that the third respondents has exercised its jurisdiction by invoking sec. 28 (6) (1) alleging that the petitioner has collected tax and has not disclosed the same in the return. (3) The order passed under Sec. 28 (6) reads as under; in view of the findings of my enquiries and investigations and also as a result of scrutiny of the seized documents, regular books of accounts and other records connected with the case, and upon hearing the assessee company with regard to its views on the issues involved, I am of the considered opinion that the assessee company has failed to rebut the issues detected and attributed against it in respect of claim of willful wrong exemptions, concealment and evasion of tax both on the turnovers of transportation charges collected and taxes collected on the turnovers of the tax exempted Nelamangala plant, either on the point of law or on the point of merit. Hence, as a consequence there of, under the powers vested in me under Sec. 28 (6) read with clause (i) and (iii) of the KST Act, 1957, I provisionally assess the dealer on those turnovers for the period 1-4-1997 to 31-3-1998 as follows. "" (4) It is no bodys case that the petitioner has not declared the entire turnover declared in the return or the assessments submitted in Form No. 3. The only bone of contention is that the declared turnover is in contravention of condition No. 3 and the second exemption notification. Therefore on facts it is clear that there is no failure on the part of the petitioner to declare the whole turnover either in the books or in the return submitted by the petitioner. Therefore the order suffers from want of jurisdiction in the absence of any finding with regard to failure to declare in terms of Sec. 28 (6) (1) of the Act. Sec. 28 (6) (3) again deals with claiming exemption on the turnover liable to tax declared in the return or the statements submitted in Form No. 3. As I mentioned earlier, it is the case of the department that though the petitioner is eligible for exemption, he has violated condition No. 3 warranting action in the given set of circumstances. The exemption on the turnover liable to tax is different from exemption granted as a whole by way of concession. As I mentioned earlier, it is the case of the department that though the petitioner is eligible for exemption, he has violated condition No. 3 warranting action in the given set of circumstances. The exemption on the turnover liable to tax is different from exemption granted as a whole by way of concession. Both stand on a totally different footing. Therefore the petitioner counsel is right in his submission that the entire order is without jurisdiction. In fact he has raised this contention even before the officer concerned, and have categorically stated by the officer that the assessee company questioned the invoking the provisions of provisional assessments as per Sec. 28 (6) of the KST Act 1957, on the basis that none of the grounds as enumerated in clause (i) to (iv) of Sec. 28 (6) of the KST Act 1957 exists in their cases. Unfortunately, the authority without properly understanding the condition comes to a conclusion that Sec. 28 (6) (i) is applicable. In fact the authority holds that the company has collected taxes on the sale value in respect of the sales of the exempted unit, it has failed to declare this turnover in its proper perspective. This finding stands on a totally different footing in the light of a clear wordings in terms of Sec. 28 (6) (1) of the Act. In fact the concluding paragraph of the impugned order will show a finding that the assessee company has failed to rebut the issues detected and attributed against it in respect of claim of willful wrong exemptions, concealment and evasion of tax both the turnovers of transportation charges collected and the taxes collected on the turnovers of the tax exempted Nelamangala plant either on the point of law or on the point of merit. Therefore I am clear in my mind that the present order is without jurisdiction. Therefore the petitioner is right in his submission that the order requires my interference in the light of a glaring violation of conditions contemplated on the admitted facts. These findings are on the basis of the pleadings placed by the parties. No further adjudication on facts is necessary as argued by the State. Therefore the petitioner is right in his submission that the order requires my interference in the light of a glaring violation of conditions contemplated on the admitted facts. These findings are on the basis of the pleadings placed by the parties. No further adjudication on facts is necessary as argued by the State. (5) On the facts of this case, it is also to be noticed that the proceedings under Sec. 28 (6) is without jurisdiction and therefore it cannot be sent to the regular officer in terms of Sec. 28 (7 ). This is also a matter that is required to be noticed by this Court. (6) Having come to this conclusion, let me see as to whether this court can exercise its jurisdiction in a case like this. I must notice the judgment of the Supreme Court in the case of State of UP Vs. Mohd Nooh (AIR 58 SC 86) Supreme Court has noticed as under; 10. This would be so all the more if the tribunals hearing the appeal or revision were merely departmental tribunals composed of persons belonging to the departmental hierarchy without adequate legal training and background and whose glaring lapses occasionally come to out notice. The superior Court will ordinarily decline to interfere by issuing certiorari and all we say is that in a proper case of the kind mentioned above it has the power to do so and may and should exercise it. We say no more than that. " (7) In Calcutta Discount Co Ltd. , Vs. ITO ( AIR 1961 SC 372 a Constitution Bench of the Supreme Court has ruled as under; it is well settled however that though the writ of prohibition or certiorari however that against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts, it is well settled, will issue appropriate orders or direction to prevent such consequences. The existence of such alternative remedy is not however always a sufficient reason for refusing a party quick relief by a writ of order prohibiting an authority acting without jurisdiction from continuing such action. The existence of such alternative remedy is not however always a sufficient reason for refusing a party quick relief by a writ of order prohibiting an authority acting without jurisdiction from continuing such action. (8) Universal Cables Ltd. , Vs Union of India (1978 ELT J632), is a judgment of the Madhya Pradesh High Court wherein the court has held as under; it is now settled law that if a notice issued by a tribunal or authority threatening to initiate proceedings prejudicial to a person is on admitted facts in excess of jurisdiction the tribunal or authority can be prohibited from further proceeding in the matter under Art. 226 to save unnecessary harassment of the person concerned (9) Learned Advocate General has relied on AIR 1985 SC 330 (Asst. , Collector, CE Chandan Nagar Vs. Dunlop India Ltd. ,) wherein the Supreme Court has ruled as under; a tendency to grant interim orders, with a great potential for public mischief for the mere asking is deprecated by the Supreme Court. It was further observed that such interim orders, often ex parte and non-speaking are made even by the High Courts while entertaining writ petitions under Art. 226 of the Constitution, and in the Calcutta High Court, on oral application too. (10) I must also notice the latest judgment of the Supreme Court reported in JT 2003 (6) SC 465, wherein the Supreme Court has ruled that a certiorari, under art. 226 of the Constitution is issued for correcting gross errors of jurisdiction, i. e. , when a subordinate court is found to have acted (1) without jurisdiction by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by over stepping or crossing the limits of jurisdiction. (11) Since I have come to a conclusion on facts that the authorities have exceeded their jurisdiction this court can certainly, particularly in the given set of circumstances, can interfere and set aside the order without jurisdiction and in excess of jurisdiction in terms of the Act. "relief: ( 11 ) RESPECTFULLY following the judgment of the Supreme Court, I deem it proper to set aside the impugned order for what want of jurisdiction on the facts of this case. "learned Counsel for the petitioner further elaborately argued with regard to collection of tax and how the same is to be understood on the facts and circumstances of this case. "learned Counsel for the petitioner further elaborately argued with regard to collection of tax and how the same is to be understood on the facts and circumstances of this case. Large material was produced in addition to relying on large number of case laws. Since I have come to the conclusion that the order is without jurisdiction, I deem it unnecessary to express any opinion with regard to that aspect of the matter. The question as to whether the petitioner has collected the tax wrongly or in contravention of the notification, is left open. If the State still feels that action is needed in terms of the sales tax laws, liberty is available to the State to act in a manner known to law and if available to them in law. " ( 12 ) BEFORE parting with this case, it is also necessary for this Court to make a few observations with regard to concessions and exemption if granted by the State in the larger interest of economic growth. In these days of commercial globalization of business each country and for that matter each State has to compete with others for better investment and for better economy. At the same time while granting concession the interest of the consumer has to be given its foremost place. As a matter fact, learned Advocate General argued that the consumer interest is paramount in such cases. He also invites my attention to the judgment of the Supreme Court in the case of Amrit Banaspati Co Ltd. , Vs. State of Punjab (1992 STC 493) The Supreme Court has ruled as under; an exemption is a concession allowed to a class or individual from general burden for valid and justifiable reason. For instance tax holiday or concession to new or expanding industries is well known to be one of the methods to grant incentive to encourage industrialization. Avowed objective is to enable the industry to stand up and compete in the market. Sales tax is an indirect tax which is ultimately passed on to the consumer. If an industry is exempt from tax the ultimate beneficiary is the consumer. The industry is allowed to overcome its teething period by selling its products are comparatively cheaper rate as compared to others. Therefore, both the manufacturer and consumer gain, one by concession of non-levy and other by non-payment. If an industry is exempt from tax the ultimate beneficiary is the consumer. The industry is allowed to overcome its teething period by selling its products are comparatively cheaper rate as compared to others. Therefore, both the manufacturer and consumer gain, one by concession of non-levy and other by non-payment. Such provisions in an Act or notification or orders issued by the Government are neither illegal nor against public policy. Inspiration can be drawn from this Apex Court ruling to show that consumer interest also is a factor that requires consideration by the authorities who are empowered to provide concession for better economic growth. It is hoped that the respondent State would take care of the consumer interest also at least in future so that the benefit may flow to the consumer as well. ( 13 ) IN the result, these petitioners are allowed. Impugned orders and the consequential demands are set aside for want of jurisdiction. Liberty is reserved in terms of this order to the State. No arguments are advanced with regard to freight in terms of Rule 6 (4) of the KST Rules. No opinion is expressed with regard to that issue in this petition. Liberty is reserved to the petitioner to workout his remedy in a manner known to law in so far as freight is concerned. Ordered accordingly. No costs. --- *** --- .