ORDER 1. This appeal is directed against the order dated 23-6-2005 passed by the High Court of Karnataka at Bangalore in Sales Tax Revision Petition No. 32 of 2005 filed by the appellant, whereby the High Court partly allowed the petition filed by the appellant. 2. Brief facts giving rise to the filing of the present appeal, by special leave are as follows: The appellant is a transporter engaged in transporting goods from Mangalore (Karnataka) to various destinations in the country. He is the owner of vehicle (hereinafter referred to as “the appellant”) bearing Registration No. KA-19 A-3435. The companies, namely, M/s. PAS Petro Products & M/s. Vivek Petro Chemicals Pvt. Ltd., who are registered dealers under the provisions of the Karnataka Sales Tax Act, 1957 (for short “the Act”), having their head office at Pond cherry/Chennai and branch office at Mangalore, are the consignors of the goods in question. 3. During the months of May and June 2002, the appellant had transported superior kerosene oil and naptha from Mangalore Port (stock points at Mangalore) to Pondicherry/Chennai i.e. outside the State of Karnataka, consigned by the consignors i.e. M/s. PAS Petro Products and M/s. Vivek Petro Chemicals Pvt. Ltd. on stock transfer basis. 4. According to the appellant, the goods in question were imported by the consignors into the country from abroad and formed part of their stock at Mangalore after clearance from the Mangalore Port. To reach the consignors head office, the transport vehicle has to pass through the State of Karnataka. If the vehicle has to move from Mangalore, in the normal course, it has to pass through check post at Kannur, Mangalore, which is the entry or inward check post in Karnataka and the sales tax check post at Hosur Road, Attibele or N. Vaddarahalli Check Post, Mulabagal Taluk, Kolar District, which are the exit or outward check posts. 5. The driver in charge of the aforesaid vehicle, in order to obtain a transit pass, to pass through the State while carrying imported naptha and kerosene oil, as required under Section 28-AA of the Act, submitted an application in triplicate in Form 39-AA to the officer in charge of the check post at Kannur, Mangalore, which is the entry check post in Karnataka. The check post officer, after making necessary inquiries, issued a pass on the duplicate and triplicate copies of the application to the driver in charge of the vehicle and retained the original application with him. In the transit pass so issued, the check post officer had specifically directed the vehicle to cross the check post at Hosur Road (outward), Attibele, within the time and date specified. . 6. In the instant case, the driver in charge of the vehicle appeared to have created documents as if the duplicate transit pass was surrendered at N. Vaddarahalli Check Post, Mulabagal Taluk, Kolar District, and the duplicate copy of the transit pass was received by the officer, who had issued the transit pass in an envelope affixed with postal stamps used by the general public, instead of government service postage stamp. This caused suspicion regarding the genuineness of the movement of the goods vehicle out of the State of Karnataka by crossing at N. Vaddarahalli Check Post at Mulabagal Taluk. The officer in charge of the check post at Kannur, after making necessary inquiries and letter correspondence with his counterparts at Hosur and N. Vaddarahalli Check Post and being convinced that the goods vehicle, for which transit pass had been issued, had not crossed the State borders, initiated proceedings under Sections 28-AA(4) and (5) of the Act by issuing a show-cause notice to the appellant, to show cause as to why he be not assessed to tax as contemplated under Section 28-AA(4) of the Act and visited with penalty under Section 28-AA(5) of the Act for contravention of the provisions of Section 28-AA(2) of the Act. 7. The appellant filed his reply to the show-cause notice. 8. The check post officer, after affording a reasonable opportunity of hearing to the appellant and after considering several objections raised in the reply to the show-cause notice, passed an order levying tax under Section 28AA(4) of the Act and imposing penalty, as provided under Section 28-AA(5) of the Act, for contravention of the provisions of Section 28-AA(2) of the Act. 9. Aggrieved against the order passed by the check post officer, the appellant filed an appeal before the first appellate authority, as provided under Section 20 of the Act. 9. Aggrieved against the order passed by the check post officer, the appellant filed an appeal before the first appellate authority, as provided under Section 20 of the Act. The first appellate authority by order dated 22-7-2003, allowed the appeal and remanded the matter to the check post officer for a fresh decision in accordance with law and in the light of the observations made by the first appellate authority in the said order. 10. Respondent, State of Kamataka, at the instance of the Joint Commissioner of Commercial Taxes, preferred appeals before the Karnataka Appellate Tribunal (for short “the Tribunal”), inter alia, questioning the correctness or otherwise of the orders passed by the first appellate authority. According to the State, the order of the first appellate authority was prejudicial to the interest of the Revenue. The appellant herein questioned the maintainability of the appeal filed on behalf of the State, as according to the appellant, the appeal had not been filed by an officer duly authorised to do so. 11. The Tribunal overruled this objection and held that the appeal had been properly constituted. On merits, the order passed by the first appellate authority was set aside and that of the check post officer restored. 12. The appellant, being aggrieved against the order passed by the Tribunal, filed statutory revision under Section 23 of the Act in the High Court. 13. Realising that the appeal had not been filed by a properly constituted authority on behalf of the State, the State Government in order to correct the error, granted post facto sanction in favour of the officer who had filed the appeal on its behalf. 14. The High Court came to the conclusion that the post facto sanction granted by the State Government would relate back to the date of the filing of the appeal before the Tribunal and therefore the defect, if any, in filing of the appeal stood cured. In order to appreciate the dispute on merits, it would be necessary to refer to the provisions of Section 28-AA of the Act, which are reproduced below: “28-AA. In order to appreciate the dispute on merits, it would be necessary to refer to the provisions of Section 28-AA of the Act, which are reproduced below: “28-AA. Transit of goods by road through the State and issue of transit pass.-(l) Where a vehicle is carrying goods taxable under this Act,(a) from any place outside the State and bound for any place outside the State and passes through this State; or (b) and which goods are imported into the State from any place outside the country and such goods are being carried to any place outside the State, the driver or any other person in charge of such vehicle shall furnish the necessary information and obtain a transit pass in duplicate containing such particulars as may be prescribed, from the officer in charge of the first check-post or barrier after his entry into the State or after movement has commenced from the State as the case may be, or from the officer empowered for the purposes of sub-section (3) of Section 28-A, upon interception of the goods vehicle after its entry into the State or after movement has commenced as the case may be. (2) The driver or the person in charge of the vehicle shall deliver within the stipulated time a copy of the transit pass obtained under sub-section (1) to the officer-in-charge at the last check-post or barrier before his exit from the State. (3) If for any reason, the goods carried in a goods vehicle are, after entry into the State, not moved out of the State within the time stipulated in the transit pass, the owner of the goods vehicle shall furnish to the officer empowered in this behalf the reasons for such delay and other particulars, if any, thereof and such officer shall after due enquiry extend the time of exit by suitably amending the transit pass: Provided that where the goods carried by a vehicle are, after their entry into the State, transported outside the State by any other vehicle or conveyance, the onus of proving that the goods have actually moved out of the State shall be on the owner of the vehicle who originally brought the goods into the State. (4) If the driver or any other person in charge of the vehicle does not comply with sub-section (2), it shall be presumed that the goods carried thereby have been sold within the State by the owner of the vehicle and shall, notwithstanding anything contained in sub-section (5) of Section 5, be assessed to tax by the officer empowered in this behalf in the prescribed manner. (5) If the owner of the vehicle having obtained the transit pass as provided under sub-section (1) fails to deliver the same as provided under sub-section (2), he shall be liable to pay by way of penalty a sum not exceeding double the amount of tax leviable on the goods transported. (6) The amount of tax and the penalty levied under this section shall be recovered in the prescribed manner. (7) Where the owner of the vehicle who is assessed to tax under subsection (4), is carrying after such assessment, any goods taxable under this Act in a goods vehicle from any place outside the State and bound for any other place outside the State and is passing through the State, the prescribed authority may demand from such owner an amount equivalent to two times the tax leviable on such goods under this Act as security. (8) The prescribed authority after being satisfied that the goods carried in the goods vehicle in respect of which the security amount under subsection (7) was collected, has passed through the State, shall refund such security amount to the owner. (9) The prescribed authority may by an order adjust the whole or any part of security amount towards any amount of tax or penalty payable under this section by such owner. Explanation.-In case where a vehicle owned by a person is hired for transportation of goods by some other person, the hirer of the vehicle shall for the purposes of this section be deemed to be the owner of the vehicle.” 15. Explanation.-In case where a vehicle owned by a person is hired for transportation of goods by some other person, the hirer of the vehicle shall for the purposes of this section be deemed to be the owner of the vehicle.” 15. The High Court came to the conclusion that the presumption under sub-section (4) of Section 28-AA was rebut table and the appellant was required to be given an opportunity to rebut the presumption raised there under and, accordingly, set aside the findings regarding the levy of tax under Section 28-AA(4) and remitted the case back to the check post officer to pass a fresh order in accordance with law, after affording due opportunity to the owner/driver of the vehicle to rebut the presumption raised under subsection (4). The High Court maintained the penalty levied under sub-section (5) of Section 28-AA of the Act, against the appellant. 16. Counsel for the appellant submits that under sub-section (5) the authority concerned can levy penalty of a sum of not exceeding double the amount of tax leviable, and since the findings under Section 28-AA(4) had been set aside, the penalty could not be levied till the amount of tax leviable had been determined by the authority. He further contended that according to the explanation appended to Section 28-AA of the Act, at the relevant time, the hirer of the vehicle would be deemed to be the owner of the vehicle for the purposes of levy of tax and penalty; whereas, in the present case, the penalty has been levied on the owner of the vehicle whose vehicle had been hired by the consignor, ignoring Explanation 1. 17. To refute the aforestated contentions put forth on behalf of the appellant, the learned counsel appearing for the respondent submitted that the tax is levied under sub-section (4), whereas under sub-section (5), words are "the tax leviable" and there is a difference between the levy of tax and the leviability of the tax and, therefore, sub-sections (4) and (5) are not interlinked or interconnected; and that levy of penalty is independent of subsection (5) [sic sub-section (4)]. He further submitted that a clarificatory amendment was brought about in the Explanation appended to Section 28AA of the Act in the year 2004, which reads thus: “Explanation.-In case where a vehicle owned by a person is hired for transportation of goods by some other person including a transporting or any other similar agency, both the persons shall for the purposes of this section, be deemed to be the owner of the vehicle, and shall be jointly and severally liable to pay any amount of tax or penalty payable.” (Emphasis supplied) and therefore the penalty could be levied on the owner of the vehicle as well. 18. Having heard the learned counsel for the parties, we are of the considered view that it would be in the fitness of the things to set aside the findings recorded by the High Court regarding the levy of penalty under Section 28-AA of the Act as well and remit the case back to the check post officer, to whom the matter has been remitted back under Section 28-AA(4), for a fresh decision in accordance with law. The check post officer shall now decide regarding the levy of tax as well as the imposition of penalty under Section 28-AA(4) and Section 28-AA(S), in accordance with law, without being influenced by any of the observations made by the High Court in the impugned judgment or by us in this order. 19. All contentions to either of the parties and all questions on merits are left open to be agitated/raised before the check post officer. However, the question regarding the filing or maintainability of the appeal, which has been finally decided in favour of the State by the High Court, is deemed to be closed. 20. The appeal stands disposed of accordingly. In the facts and circumstances of the present case, there shall be no order as to costs. Civil Appeals Nos. 3788-44 of 2006 21. In view of the foregoing order in CA No. 3787 of 2006, all these appeals stand disposed of.