S.C. MOHAPATRA, J.

1. This reference arises out of a petition by the Revenue under section 24 (1) of the Orissa Sales Tax Act, 1947 (for short "the "act"). Statement of the case has been made by the Member, Additional Sales Tax Tribunal on the following questions : " (1) Whether, on the facts and in the circumstances of the case, in the absence of certificate as required under proviso to clause (a) of sub-rule (4) of rule 94 of the Orissa Sales Tax Rules, the Member, Additional Sales Tax Tribunal is correct in law to permit adjustment of Rs. 270. 64 (2) Whether, on the facts and in the circumstances of the case, the Member, Additional Sales Tax Tribunal, was correct in law to allow under section 13 (8) of the Orissa Sales Tax Act rebate of Rs. 144. 41 "

2. The dealer registered under the Act carries on business of purchase and sale of automobile spare parts, tyres, tubes and lubricants at Jajpur Road. He is to file quarterly return and pay the tax admitted in such returns along with it. While assessing the dealer for the year 1974-75, the assessing officer rejected the claim for adjustment of the amount paid at the check gate under rule 94 (4) of the Orissa Sales Tax Rules, 1947 in spite of the fact that the receipts were produced before him. The assessing officer also refused to allow rebate to the dealer as provided under section 13 (8) of the Act. Aggrieved, the dealer filed appeal before the Assistant Commissioner but without any success. He, thereupon, filed second appeal before the Sales Tax Tribunal. The Tribunal having allowed both the claims of the dealer, the State filed application for reference to this Court for decision.

3. As regards the claim of the dealer for adjustment of the amount paid under rule 94 (4) at the check posts, it provides that a certificate being granted by the check gate officer about the bona fides of the transfer of goods, the same would be adjusted by the assessing officer. There is no form prescribed in which a certificate is to be granted. There is no finding of the assessing officer that the transfer of goods from one place to the place of business does not find place in the books of account of the dealer or is not otherwise bona fide. Adjustment of the amount already paid is for the benefit of the assessee since the legislature never intended that tax is to be paid twice by the dealer in respect of only one transaction of sale of goods by him. Therefore, in absence of a prescribed form for the certificate required under rule 94 (4) (a) and in the absence of a finding of absence of bona fides, the dealer was entitled to adjustment of the amount on production of the receipt of the amount granted by the check gate officer in respect of the amount. The Tribunal is correct in law to permit adjustment of Rs. 270. 64 in that regard. Question No. (1) is answered in favour of the assessee.

4. As regards allowing the rebate, section 13 (8) is to be kept in view. It reads as follows : " 13. Payment and recovery of tax and penalty.- (1) to (7). . . . . . . (8) A rebate of one per centum on the amount of tax payable by a dealer shall be allowed, if such tax is paid by the dealer on or before the due date of payment. "

5. Grant of rebate is a matter relating to "payment and recovery of tax" as is clear from the short title of section 13 of the Act. Section 23 of the Act provides for appeal against order of assessment under sections 12, 12-A and 12-B and order imposing penalty under section 11 (3) of the Act. No appeal lies against refusal to allow rebate under section 13 (8) of the Act. A second appeal to the Tribunal lies only against an appellate order. Therefore, in the absence of a provision for appeal against refusal to allow rebate under section 13 (8) of the Act, the Tribunal had no jurisdiction to allow rebate. Question No. (2) is answered in favour of the department.

6. In the circumstances of the case, parties shall bear their own costs. Reference answered accordingly.