Judgment :- Shylendra Kumar, J. This appeal had been admitted on 07.07.2009 and had been directed to be listed for further orders today with the understanding that the matter can be disposed of. However, it is wrongly listed as for admission again. 2. Be that as it may, as Sri. Manjunath, Learned Additional Government Advocate appearing for the respondent is ready in the matter, we have heard Sri. Atul K Alur, learned counsel for the appellant and Sri. Manjunath, Learned Additional Government Advocate appearing for the respondent on the merits of this matter. 3. This is an appeal by the dealer under section 24 of the Karnataka Sales Tax Act, 1957 [for sort ‘the act’] directed against the order dated 24.12.2005 passed by the additional Commissioner Of The Commercial Taxes, Zone-1 [Copy At Annexure-C], who in exercise of his suo motu powers under the Section 22- A [2] of the act had revised and set aside the order passed by the first appellate authority, namely, the Deputy Commissioner Of Commercial Taxes [Appeals & Audit] [Copy At Annexure- V] who had under the order dated 11.08.2003 set aside the levy of penalty of Rs.83,324/-that had been levied by the assessing authority in terms of the provisions of the Section 28-A[4][a] of the Act. 4. The brief facts leading to the present appeal are that the goods vehicle bearing registration No. KA 03 6804 which was carrying certain goods taxable under the act was intercepted on 4.3.2002 and was checked by mobile check post near Majestic area of Bangalore city and the driver was called upon to produce the supporting documents in respect of the goods that was being transported in the vehicle, particularly, to support the fact that the goods carried by the vehicle was goods which had suffered sale tax liability at the last point of sale. 5. A check memo notice was issued to the driver of the vehicle and on the very next day the appellant – owner of the goods in question filed its reply and along with that the appellant had also produced requisite documents of invoice to support the transaction of sale in favour of the appellant and also to prove the factum of the goods having suffered tax at the sale point and collected by the seller. 6. 6. It appears the check post officer thought accepted this invoice, had nevertheless, proceeded to pass an order in terms of section 28-A[4] of the act levying penalty of Rs.83,324/-,notwithstanding the production of the invoice and which was also accepted, but for the reason that the assessee – dealer had failed to produce supporting books of accounts and form No.3. 7. The assessee being aggrieved by this order appealed to the first appellate authority. 8. The appellate authority noticed that the proposition notice issued on 4.3.2002 had never called upon the assessee to produce either the books of accounts or form-3 and had only called upon the assessee to file supporting document of the invoice and which the dealer had produced and had also been accepted and in this view of the matter while there was no justification to levy any penalty, also was of the view that the proposition notice never gave an opportunity to the dealer proposing levy of penalty for non-production of the books of accounts an form-3 which was otherwise not a requirement as it was not required to be produced before the check post officer at the time of the check of the vehicle. 9. However, the revisional authority-Additional commissioner of commercial taxes beings of the view that some revenue to the state had escaped assessment in terms of the appellate order passed by the deputy commissioner, issued noticed to the dealer proposing revision of that order, gave an opportunity and under the impugned order has reversed the appellate order and has restored the penalty as levied by the original authority. 10. It is therefore the dealer is in appeal before this Court. 11. Submission of Sri. Atul K alur, Learned Counsel for the appellant is that there was no justification for levy of penalty and it was not even proposed to the appellant- dealer that penalty is proposed to be levied for non-production of form-3 and books of accounts; that penalty has been levied without any application of mind and without any opportunity even when there was no justification for levy of penalty. 12. 12. In this regard, Learned Counsel for the appellant has taken us through the provisions of Section 28-A [4] of the Act and submits that the assessing authority had not even mentioned that the cause shown by the appellant- dealer for non-furnishing of the invoice when it was demanded for production by the driver was not a sufficient cause and therefore also the penalty was not justified in terms of the statutory provision. 13. Sri H M Manjunath, Learned Additional Government Advocate appearing for the revenue supports the order passed by the revisional authority affirming the order of the original authority and reversing the order of the appellate authority. 14. Sri. H M Manjunath, Learned Additional Government Advocate submits that there was infraction at the time when the checking officer intercepted the vehicle as the person in charge of the vehicle which was found carrying goods failed to produce supporting documents for the tax having been paid in respect of goods being transported and therefore it was a clear case of violation of the requirement of law and the levy of penalty was justified by the assessing authority and it is rightly restored by the revisional authority. 15. We have bestowed our attention to the submission made at the Bar, perused the orders and the record. 16. While Section 28-A [4] of the Act does contemplate of penalty for non-compliance with the requirements of sub-Sections [2], [3], 3A, 3B of Section 28-A of the Act, and there is a minimum penalty of like amount of tax and it can go up to one and half times, nevertheless, the justification for levy is on the premise that the dealer has failed to furnish sufficient cause for non-production of the documents at the time when it was demanded to be produced. 17. In the present case, there is no dispute that the document in question has been produced the next day and it has also been accepted by the check post officer himself. If so, a levy will be justified only if the assessing officer was of the view that the dealer had failed to come up with sufficient cause for non-furnishing when it was demanded. We do not find any recording of such nature by the assessing officer. If so, a levy will be justified only if the assessing officer was of the view that the dealer had failed to come up with sufficient cause for non-furnishing when it was demanded. We do not find any recording of such nature by the assessing officer. On the other hand, there is absolutely no awareness bestowed by the assessing officer to the explanation offered by the dealer for non-production when it was demanded to be produced by the check post officer. Whether it was justified or not is not an aspect which we are required to go into in this appeal as the question is only about the legality of the levy of penalty and in the absence of a finding that the dealer had not come up with sufficient cause for non-furnishing of the documents at the time of the check, the penalty is not sustainable. 18. The appellate authority was right in setting aside the penalty and revisional authority is wrong in reversing that order and restoring the order of penalty. 19. Accordingly this appeal is allowed, setting aside the order passed by the revisional authority as also the order passed by the assessing authority levying penalty.