Rajasekhara Murthy, J.
1. The petitioner is a wholesale wine merchant doing business in Mysore and a dealer registered under the Karnataka Sales Tax Act and the Central Sales Tax Act. The petitioner indented Golden Eagle Beer from M/s. Mohan Meakins Breweries Ltd., Mohan Nagar, Khopoli, Uttar Pradesh, and the said liquor was transported in a vehicle bearing registration No. MEQ-2790 from Khopoli in Uttar Pradesh to Mysore. The said vehicle was checked by the Assistant Commercial Tax Officer, in-charge of the Sales Tax Check Post, Kumarapatnam near Harihar, on 20th May, 1978. The truck was being driven by one Iqbal Singh and the truck contained 700 cartons of Golden Eagle Beer. The driver was called to the check post and was asked to produce documents in respect of the goods. Since the driver did not produce the bill of sale or a delivery note, though he tendered some documents which were with him, a notice was issued to him under section 28A(4) of the Karnataka Sales Tax Act, 1957, calling upon him to produce proper documents within a reasonable time or else a penalty of Rs. 12,000 would be levied for the alleged contravention of the provisions of section 28A(2) of the Act. The required documents were not produced and the Check Post Officer levied a penalty of Rs. 12,000 by his order dated 22nd May, 1978. On the driver's refusal to receive the order, the same was said to have been affixed on the lorry. It appears a notice dated 31st May, 1978, was also served on the petitioner. The records further reveal that the goods were got released by the petitioner by furnishing a bank guarantee for Rs. 12,000.
2. The petitioner then field an appeal on 12th June, 1978, challenging the penalty levied before the Assistant Commissioner of Commercial Taxes (Appeals) enclosing the notice dated 31st May, 1978.
3. On 14th September, 1978, the Assistant Commissioner passed the order under section 20(5) rejecting the appeal as defective since the memorandum of appeal was not accompanied by the order levying the penalty. The petitioner preferred second appeal to the Karnataka Appellate Tribunal. The Tribunal dismissed the appeal on two grounds : (i) that the petitioner was not an aggrieved person and so not competent to file the appeal, and (ii) that the Assistant Commissioner was justified in dismissing the appeal as defective.
4. Aggrieved by the order of the Tribunal, the petitioner has filed this revision petition.
5. The only question involved in this petition is whether the authorities below were justified in dismissing the appeal on the ground that the petitioner did not produce a copy of the order levying the penalty along with the memorandum of appeal.
6. The relevant provisions bearing on the question are :
Section 20 of the Act and rule 28(2) of the Karnataka Sales Tax Rules coupled with form 15.
Section 20 provides for appeal against an order passed by the Assistant Commercial Tax Officer to the Assistant Commissioner of Commercial Taxes (Appeals). Sub-Section (4) of section 20 provides that the appeals shall be in the prescribed form and shall be verified in the prescribed manner.
7. Rule 28(2) of Karnataka Sales Tax Rules states that an appeal shall be in form 15 and verified in the manner specified therein. Form 15 contains the particulars to be furnished in the memorandum of appeal. Note (1) thereunder is in the following terms :
'The appeal should be accompanied by the order appealed against in original or by a certified copy thereof unless the omission to produce such order or copy is explained to the satisfaction of the appellate authority and by proof of payment of the tax and penalty not disputed in the appeal.'
8. The said note is very clear that the appeal cannot be dismissed merely on the ground that the order appealed (against) has not been produced along with the memorandum of appeal. It would be open to the appellant to explain the circumstances preventing him to produce the original or a copy of such order. When any such explanation is furnished, the appellate authority should consider the same and when it is unacceptable for the reasons stated, then the appeal could be dismissed and not otherwise.
9. Let us now examine whether there was any explanation offered by the appellant and whether that explanation was found to be not satisfactory and unacceptable to the appellate authority. In the appeal, the Assistant Commissioner of Commercial Taxes (Appeals) issued a notice dated 7th July, 1978, to the appellant pointing out the defect in the appeal and calling upon him to produce the order levying the penalty. The appellant in his reply dated 4th August, 1978, stated that he had not received any such order, except the notice dated 31st May, 1978, and the same should therefore be treated as an order. The Assistant Commissioner thereafter examined the records received from the Check Post Officer and found that an order under section 28A(4) had been passed on 22nd May, 1978, and the same was sought to be served on the person in-charge of goods vehicle but he refused to receive the same. Under those circumstances, a copy of the order was affixed on the body of the lorry. The Assistant Commissioner was therefore of the view that there was an order passed by the Check Post Officer levying penalty and that order ought to have been produced along with the memorandum of appeal. He accordingly dismissed the appeal without going into its merits.
10. The fact, therefore, remains that on order levying penalty was served on the petitioner. It can also be reasonably inferred that the petitioner was not aware of that order. It is further clear from the records that the petitioner who is the owner of the vehicle in question was not travelling in it along with the goods. It was only upon the notice dated 31st May, 1978, being served upon him that the came to know of the matter and got the goods released from the check post authorities. Quite naturally, he acted only upon the notice served on him. Under these circumstances, the authorities below were not correct in insisting upon the production of the order appealed against.
11. In the result, we allow this revision petition, set aside the orders of the Tribunal as well as the Assistant Commissioner of Commercial Taxes (Appeals), Dharwad Division, Dharwad, and remit the matter to the letter with a direction to entertain the appeal and dispose of it on merits and in accordance with law.