KOKJE, J. - (1.) HEARD Shri Johari on admission.
(2.) THIS writ petition is directed against an order passed by Rajasthan Taxation Tribunal disposing of a revision application. The respondent No. 2 is a dealer in plastic goods. A penalty of Rs. 2400/-was imposed on him by the Assessing Authority on 30. 10. 1982 under Section 22 (6) of the Rajasthan Sales Tax Act. This penalty was deposited on the same day by the respondent. Thereafter he filed an appeal challenging imposition of penalty. That appeal was allowed on 6. 8. 1984 and the penalty was set aside. The respondent obtained a refund on Rs. 2400/-on the basis of appellate order on 24. 5. 1985. The State went into the appeal before the Rajasthan Tax Board, predecessor of the Rajasthan Sales Tax Tribunal. On 24. 8. 1992 the State's appeal was accepted and the order, on the basis of which refund was made, was set aside. Thus the penalty of Rs. 2400/-was restored. On 1. 10. 1992 a demand was raised against the respondent for Rs. 2400/-on account of penalty and Rs. 3968/-on account of interest under Section 11-B of the Rajasthan Sales Tax for the period from 24. 5. 1985, the date on which the refund was taken by the respondent, to 1. 10. 1992. The Tribunal held that the interest on the penalty amount of Rs. 2400/-could not be claimed in the circum-stances of the case. Against this decision the present petition has been filed. Upon hearing the learned counsel we agree with the view taken by the Tribunal that during the period the order of penalty was not in existence, interest could not be charged. We are also of the opinion that after the penalty is paid and the order, under which the penalty was imposed, is challenged thereafter, it is not a question of delay in payment of penalty any more. It is only a case for claiming a refund. The penalty proceedings are closed by payment of the penalty amount. What remains thereafter is only a proceeding for refund of the amount. When the order of refund is set aside, the question only is of restitution and not of delay in payment of penalty. Interest, therefore, could not have been charged on the amount refunded unless a restitution is ordered by the authorities on payment of interest. Learned counsel brought to our notice a decision of the Hon'ble Supreme Court in Haji Lal Mohd. Biri Works vs. The State of U. P. & Ors. (1 ). The case is clearly distinguishable because it relates to delay in payment of the amount demanded by obtaining stay order. The case in which a party himself brings about a situation in which the payment of the penalty is delayed, has to be distinguished from a case in which an assessee pays the amount of penalty and then claims a refund. In the former case the payment of penalty has never taken place. In the latter the payment of penalty has already taken place. We are, therefore, of the opinion that the aforesaid decision of the Supreme Court does not govern the present case. For the aforesaid reasons we find no reason to interfere with the order passed by the Tribunal. The petition is dismissed without notice to other party. .;