K. Sreedhar Rao, Actg. C.J. 1. The petitioner, an oil company, purchased oil products from Oil India Limited and Gas Authority of India Limited during the year 1998-02. The petitioner, on the purchases, made from the said two entities, paid sales tax as per the rates declared in Schedule-II of the Assam General Sales Tax Act, 1993. The petitioner made the sale to the dealers in Assam and collected the taxes and some amount of excess tax was also collected from the dealers by the petitioner. The excess tax so collected, has been remitted to the Government. The assessing authority passed an order directing forfeiture of the taxes collected by the petitioner from its dealers and also proposed to levy penalty under section 65 of the Assam General Sales Tax Act. The petitioner aggrieved by the said order, filed an appeal before the appellate authority. The appeal was dismissed. The petitioner went to the Board of Revenue. The Board of Revenue also dismissed the appeal, hence, these writ petitions. Sri Ashok Saraf, senior counsel for the petitioners, submitted that the products purchased from the Oil India and Gas Authority are taxable products; therefore, sales tax has been paid to the said sellers. The Oil India and Gas Authority were not the specified oil companies till the year 2002. The provisions of section 8 exempts from paying sales tax when the purchase is made by one oil company from the other oil company. In such a case, the purchasing company can levy tax when its sales to the dealers. In the instant case, the Oil India and Gas Authority not being specified oil companies for the purchases made, the petitioner had paid the sale tax as required in Schedule II. When the petitioners sold the products within Assam to the dealers, the tax paid to its sellers was recovered from the dealers and some excess tax was also collected. However, the excess tax collected, has been remitted to the Government and there is no appropriation of any amount of excess tax collected from the dealer is retained by the petitioners. It is said that the provisions of section 65A of the AGST Act, 1993 have no application to the facts of the case because, under Sub-section (1) of section 65A the goods purchased are taxable and they are not exempted from tax. It is said that the provisions of section 65A of the AGST Act, 1993 have no application to the facts of the case because, under Sub-section (1) of section 65A the goods purchased are taxable and they are not exempted from tax. Therefore, collection of tax by the petitioner from its dealers cannot be termed as illegal since the petitioner had paid the tax to its sellers. Therefore, the initiation of proceedings and order of forfeiture and levy of penalty under section 65A is bad in law. 2. The Government Advocate, Mr. S Saikia, appearing for the Department strenuously argued that in view of the Explanation 2 to section 8, read with section 65A(3) of the AGST Act, 1993 and rule 12 of the AGST Rules, 1993, the petitioner is not entitled to collect tax from the dealers; therefore, the initiation of proceedings under section 65A is justified in law. 3. The counsel also referred to the decision of the Supreme Court in T. Stanes & Co. Ltd. v. State of Tamil Nadu reported in [2005] 141 STC 227 (SC) : [2005] 9 SCC 308, and relied upon the observations made in paragraphs 3 and 4 of the aforesaid judgment, which are as follows (pages 228 and 229 in 141 STC): "The question involved is whether section 22 of the Madras Sales Tax Act bars the appellant from collecting in any manner amounts paid by them to the seller by way of tax. The relevant portion of section 22 reads as follows: '22. Collection of tax by dealer--(1) No person who is not a registered dealer shall collect any amount by way of tax or purporting to be by way of tax under this Act; and no registered dealer shall make any such collection except in accordance with the provisions of this Act and the Rules made thereunder: Provided that nothing in this sub-section shall apply to the collection of an amount by a registered dealer, towards the amount of tax already suffered under this Act in respect of goods, the sale or purchase price of which is controlled by any law in force.' 4. The wording of the section is very clear. The term 'collect' would include in its ambit collection in any manner. Purported recoupment or recovery would be nothing else but collection. The wording of the section is very clear. The term 'collect' would include in its ambit collection in any manner. Purported recoupment or recovery would be nothing else but collection. Once the dealer is prevented from collecting, it is not open to say that he is not collecting but is only recouping. We find ourselves unable to accept the reasoning given by the High Court in Metal Sales Corporation Vs. Joint Commercial Tax Officer, Harbour III Assessment Circle, . Mere case of a different nomenclature or language cannot be allowed to defeat the clear provision of the section. If the reasoning of the High Court in Metal Sales Corporation Vs. Joint Commercial Tax Officer, Harbour III Assessment Circle, is accepted, section 22 would be rendered nugatory. It would enable dealers to collect by just terming the collection as recoupment, recovery, etc. The recoupment, recovery, collection is nothing else but the amount paid by the assessee to its seller towards the tax liability of the seller. Further recovery, recoupment or collection from their buyers is what is prevented by section 22. In our view, the High Court is absolutely right in the reasoning given in the impugned judgment. The law laid down in Metal Sales Corporation Vs. Joint Commercial Tax Officer, Harbour III Assessment Circle, is not good law and stands overruled. Accordingly, the special leave petitions stand dismissed. There will be no order as to costs." 4. In view of the above submission, it was strenuously contended that the order passed under section 65A is fully justified and does not call for interference. 5. For convenient reference, the provisions of section 65A, Explanation 2 to section 8 and rule 12 of the AGST Act and Rules are reproduced below: "65A. Prohibition of collection of excess tax, forfeiture, penalty, etc.--(1) No person shall collect any sum by way of tax in respect of sales of any goods on Which no tax is payable under the provisions of this Act. (2) No person who is not a registered dealer and not liable to pay tax in respect of any sum by way of tax from any other person and no registered dealer shall collect any amount by way of tax in excess of the amount of tax payable by him under the provisions of this Act. (2) No person who is not a registered dealer and not liable to pay tax in respect of any sum by way of tax from any other person and no registered dealer shall collect any amount by way of tax in excess of the amount of tax payable by him under the provisions of this Act. (3) If any person--- (a) not being a dealer liable to pay tax under this Act, collects any sum by way of tax, or (b) being a registered dealer collects any sum by way of tax in excess of the tax payable by him, or (c) otherwise collects tax in contravention of the provisions of sub-section (1),'any sum collected by that person by way of tax in contravention of sub-section (1), shall be forfeited to the State Government and when any order of forfeiture is made the assessing officer shall publish of cause to be published a notice thereof for the information of the persons concerned. (4) Where the assessing officer has reason to believe that any person has wilfully contravened provisions of sub-section (1), he may impose upon such person a penalty of an amount not exceeding two thousand rupees or double the sum collected by such person by way of tax in contravention of the provisions of sub-section (1), whichever is less: Provided that no such order of forfeiture or penalty shall be passed unless the person or the registered dealer has been given reasonable opportunity of being heard. (5) The assessing officer shall communicate the order passed under sub-section (4) and also issue a notice of demand to the person or the registered dealer to whom a penalty was imposed for payment within the time specified by the assessing officer. (6) The assessing officer shall refund such amount to the person or the registered dealer on application made in this behalf within ninety days of the date of forfeiture provided such person or persons discharge the onus to the satisfaction of the assessing officer that such amount of tax was actually collected from him: Provided that the provisions of section 30 shall apply for refund of such amount. 8.... 8.... Explanation 2.--When an oil company, as may be specified in the rules, sells within the State of Assam its products, as mentioned in serial numbers 65, 66, 67, 68, 69 and 70 in Schedule II to any other oil company registered under the Assam General Sales Tax Act, 1993, (Act XII of 1993) for the purpose of resale of the same within the State by such purchasing oil company, such inter se sale between the oil companies shall not be treated as first point of sale for the purpose of levying tax and tax shall be levied, subject to such conditions as may be prescribed, on the purchasing oil company when they re-sale the goods within the State. 12 (1). Where a person after purchasing goods covered by Schedule II under clause (a) of sub-section (1) of section 8 sells such goods in such manner as mentioned in the Explanation to the aforesaid clause and if the price charged on such resale exceeds forty percentum of the original sale or purchase price, in respect of such goods or class of goods, the resale of such goods by such person shall be deemed as first point of sale within the State and the rates of tax shall be as specified in Schedule it for such items. (2) The following are the oil companies for the purpose of Explanation 2 under clause (a) of sub-section (1) of section 8 of the Act:-- (i) Indian Oil Corporation Limited, (ii) Bharat Petroleum Corporation Limited, (iii) Hindustan Petroleum Corporation Limited, (iv) Bongaigaon Refinery & Petrochemicals Limited, (v) Indian Oil Corporation-Assam Oil Division, (vi) Indo-Burma Petroleum Company Limited (IBP Co. Ltd.). (3) The selling oil company shall obtain a declaration in the following form, from the purchasing oil company in respect of all such sales to the effect that the purchases are for the purpose of resale by the purchasing oil company in Assam which shall be subject to levy of tax under the Act. A single declaration shall be preserved in the counter-foil by the purchasing company and shall be produced before the assessing officer on demand. A single declaration shall be preserved in the counter-foil by the purchasing company and shall be produced before the assessing officer on demand. The declaration to be issued by the purchasing oil company shall be issued serially and chronologically: Provided that goods which are purchased by furnishing the declaration and used by a dealer for the purposes other than those specified in such declaration the sale price of such goods so utilized shall be included in his taxable turnover and assessed to tax accordingly." 6. Upon stem consideration of the submissions made at the Bar, we find that the transaction between the petitioner on the one part and the Oil India and Gas Authority on the other, does not constitute a transaction of sale and purchase between the two oil companies for the periods, in question, because the Oil India and Gas Authority are declared to be oil companies only with effect from October 21, 2002. Prior to that, the Oil India and Gas Authority were not specified oil companies. The purchases made by the petitioners from the said two entities, cannot be treated as purchase from the oil companies; therefore, the question of exemption of tax did not arise. Accordingly, the petitioner paid the tax as per Schedule II of the Act. When the petitioner effected sale to its sellers, the petitioner collected the sales tax by way of reimbursement and some excess amount was collected. The excess amount, so collected, has been remitted to the Government and no part of the excess amount has been retained. 7. The Government Advocate per contra disputes the said contention and states that all the excess amount, so collected, has not been remitted. Be that as it may, the fact remains that whether in a situation like this, can the proceeding under section 65A be initiated by the assessing authority? The sub-section (1) of section 65A categorically declares that no person shall collect tax of any sum by way of tax in respect of sales of any goods on which no tax is payable under the provisions of this Act. 8. The sub-section (1) of section 65A categorically declares that no person shall collect tax of any sum by way of tax in respect of sales of any goods on which no tax is payable under the provisions of this Act. 8. Sub-section (3) of section 65A further states that any person, not being dealer liable to pay tax under this Act, collects any sum by way of tax, or being a registered dealer collects any sum by way of tax in excess of the tax payable by him, or otherwise collects tax in contravention of the provisions of sub-section (1), shall be forfeited to the State Government and any order of forfeiture by the assessing officer shall publish the same. Further, sub-section (4) declares that any tax collected in contravention of sub-section (1), the assessing authority could impose penalty on the person, if he has willfully contravened the provisions. It may be that under sub-section (3) there is restriction on the person not being a dealer to collect tax and not being a registered dealer not to collect excess tax but for such contravention no penalty is envisaged under sub-section (3). It is only for the contravention of sub-section (1), the order of forfeiture and penalty is contemplated. 9. The dominant object of sub-section (1) of section 65A perhaps is to prohibit collection of tax in respect of sales of any goods on which no tax is payable. In other words, when the goods are exempted from payment of tax, no person irrespective of a dealer, registered dealer or unregistered dealer shall collect tax in respect of goods, which are exempted from tax. The object is to prevent the consumer cheating, by dealers. If such contravention takes place and consumer cheating occurs then the penal provision, of forfeiture and penalty gets attracted. Here, in this case, the petitioner is a registered dealer. The petitioner has paid tax. The goods, in question, are taxable goods. The petitioner has paid tax to its seller, which was not a specified oil company at that time. The petitioner, therefore; has collected tax from its purchasers. 10. The above facts clearly disclose that the petitioner has not committed any contravention of section 65A(1) since the goods, in question, are not exempted goods. 11. The decision of the Supreme Court in T. Stanes &. Co. The petitioner, therefore; has collected tax from its purchasers. 10. The above facts clearly disclose that the petitioner has not committed any contravention of section 65A(1) since the goods, in question, are not exempted goods. 11. The decision of the Supreme Court in T. Stanes &. Co. Ltd., [2005] 141 STC 227 (SC) : [2005] 9 SCC 308 also does not appear to be of any assistance for the purpose of this case. Section 22 of the T.N. General Sales Tax Act, 1959 is not pari materia with the provisions of section 65A of the AGST Act. In the cited case, in section 22, a restriction is placed on an unregistered dealer to collect tax or any amount by way of tax or purporting to be by way of tax under the Act. However, a registered dealer is entitled to recoup the tax paid from its sellers. However, an unregistered dealer is not entitled to collect tax and cannot recoup the tax: In the instant case the limitation and the restriction envisaged under section 65A is altogether different. Any person cannot collect tax on sale of goods, which is exempted from tax. In view of the clear distinction with regard to the proposition of law that is discernible from the provisions of section 65A(1), it cannot be said that the petitioner has contravened the provisions of section 65A(1). Therefore, the order of forfeiture and penalty is bad in law. The same is set aside. 12. It is, however, observed that if any excess tax is collected by the petitioner, retained by him and not remitted, the assessing authority can verify and see that the excess tax collected and retained be collected by the Department. Accordingly, the petitions are allowed.