C.S.P. Singh, J.
1. The sales tax application was filed after amendment of Section 11 of the U. P. Sales Tax Act in 1977; with the result it has to be treated as a revision. Standing counsel has filed an affidavit of service on the assessee; but none has appeared.
2. An ex parte assessment was made against the assessee and he deposited an amount of Rs. 3,682.02 before moving the application under Section 30 for setting aside the ex parte order. An application under Section 30 can be entertained in case a particular amount of tax is deposited by the asses-see. The assessee had to deposit an amount of Rs. 3,910.23 and, as there was a short fall, the assessee claimed that an amount of Rs. 425.00 deposited by him at the check post barrier, Naubatpur, in pursuance of the provisions of Section 28-A read with Section 13-A(6) be treated as completing the deposit of tax. This contention was not accepted by the Sales Tax Officer and also repelled in appeal. It, however, found favour with the Judge (Revisions). Sri V. D. Singh, the standing counsel, urged that the amount of Rs. 425.00 deposited by the assessee as security for release of his goods could not be taken into account, as there was nothing to indicate that the penalty proceedings contemplated by Section 13-A were over.
3. There is nothing on 'the record to indicate that the penalty proceedings were subsisting at the time when the assessee moved the application for restoration. The assessee had contended that no penalty had been imposed. This contention was not disputed before the Judge (Revisions). In case penalty proceedings were subsisting at the time the restoration application was made, the sales tax authorities could have easily produced the relevant records to establish that this was so. The records relating to penalty proceedings were in the custody of the sales tax authorities and the question as to whether the penalty proceedings were pending was within their special knowledge and it was for them to have produced the relevant records in order to show that the claim made by the assessee for adjustment be not sustained. In the absence of such material, it is not possible to hold that at the time the restoration application was moved, penalty proceedings were subsisting.
4. Section 29(1) of the Act enjoins the assessing authorities to refund to a dealer any amount of tax, fee, or other dues paid in excess of the amount due from him under the Act. The proviso to this sub-section directs adjustment of the amount refundable towards any tax or other amount outstanding against the dealer. Rule 88 is specific, so far as cash security is concerned. It lays down that the tax or other amount payable by the dealer may be adjusted from cash security furnished by the dealer. A combined consideration of Section 29(1) and Rule 88 leaves little room for doubt that cash security deposited by a dealer can be adjusted towards the tax due. In the present case, as there is nothing on the record to indicate that penalty proceedings were subsisting on the date when the dealer had to deposit the tax, his restoration application should have been entertained, as there was no penalty order in existence. The deposit already made became sufficient by adding the amount of cash security deposited by the dealer.
5. The revision is accordingly dismissed. As none has appeared for the assessee, there shall be no order as to costs.