JUDGMENT : PRADEEP KUMAR SRIVASTAVA, J. I have heard the arguments of both the parties. 2. The present Second appeal has been preferred by the appellant M/s Anil Automobiles a proprietorship firm through its proprietor Anil Kumar Agrawal challenging the Judgment and decree dated 30.11.2016 signed on 08.12.2016 passed by learned District Judge, II, Dhanbad in Money Appeal No. 02/2012, whereby and whereunder, the learned appellate court has been pleased to allow the said appeal filed by the defendants/respondents and set aside the Judgment and decree passed on 24.09.2011 decree signed on 17.10.2011 passed by learned Sub Judge VI, Dhanbad in Money Suit No. 35 of 2006 whereby and whereunder the money suit of the plaintiff/appellant has been decreed and the defendants/respondents were directed to pay a sum of Rs. 1,68,301.58 paisa along with interest at the rate of 18 % per annum from 20.11.2006 till realization. 3. The appellant has prayed for confirmation of Judgment and Decree passed by learned trial court setting aside the judgment and decree passed by the learned appellate court in the aforesaid Money Appeal No. 02 of 2012. 4. Facts giving rise to this appeal in brief is that the plaintiff/appellant is partnership firm carrying on business of automobiles parts at village Nirsa District Dhanbad and is duly registered under Indian Partnership Act. The plaintiff had purchased mobil goods from M/s Indian Oil Corporation Ltd, a Central Government undertaking worth Rs. 1,57,695/-which was dispatched from Bastacola Jharia, Dhanbad to the plaintiff through truck no. BR 17A 4754 dated 19.02.1993. It is alleged that when the said truck along with goods reached near Police Line, Dhanbad, the Commercial Tax Officer of IB stopped the said truck and seized the same along with goods due to non-production of road permit by the driver of the truck in form no. 28B of Bihar Finance Act, 1981. 5. The Commercial Tax Officer, I.B. also issued direction that the driver should appear on 20.02.1993 before the Assistant Commissioner Commercial Tax, Dhanbad, (Defendant No. 6) requiring him to explain about the alleged contravention of Bihar Finance Act, who appeared and explained that road permit was not required for transportation of said goods, hence, there was no contravention of the provision of the said Act. In spite of that the defendant no.6 imposed penalty of Rs. In spite of that the defendant no.6 imposed penalty of Rs. 48,432 under Section 31 (3) of Bihar Finance Act which was paid by the plaintiff, whereupon the goods and truck were released. 6. The plaintiff preferred an appeal no. IB/ST/10/1993-94 before the Joint Commissioner (Appeal) Commercial Taxes, Dhanbad Division, Dhanbad against the aforesaid order of the Assistant Commissioner, Commercial Tax, IB, Dhanbad, stating interalia that the cash memo issued by the Indian Oil Corporation Ltd. shows that sales tax and additional tax were already charged by the said Indian Oil Corporation Ltd. and the Assistant Commissioner, Commercial Tax, IB has wrongly charged Rs. 48,432 as fine. The said appeal of the plaintiff was allowed vide order dated 01.11.1993 after hearing the parties. Thereafter Suo moto appeal 185/94-95 was initiated before the learned Commissioner of Commercial Taxes, Bihar, Patna, who after hearing the parties set aside the order of the Joint Commissioner dated 01.11.1993 vide its order dated 26.07.1995 and restored the order dated 20.02.1993 passed by the Assistant Commissioner, commercial Taxes, I.B. Dhanbad. 7. The appellant/plaintiff preferred a revision against the order of learned Commissioner, Commercial Taxes, dated 26.07.1995 before the Hon’ble Commercial Tax Tribunal at Patna which was later on transferred at Ranchi and registered as Revision Petition No. DN 542 of 2001 which was allowed vide order dated 25.11.2003 restoring the order dated 01.11.1993 passed by learned Joint Commissioner (appeal) Dhanbad Division, Dhanbad. The relevant portion of the order dated 25.11.2003 passed by the learned Commercial Tax Tribunal is reproduced below:- “Obviously, there is no evidence showing against the petitioner for evasion of tax. Goods were tax paid goods and the full tax has been paid by the petitioner on its purchase. Therefore his liability was further to pay only 1 per centum additional tax on which the penalty could have been imposed according to law and the JCCT (Appeal) has rightly passed the order giving direction to the Assessing Officer for imposing penalty accordingly. The commissioner, Commercial Tax has wrongly passed the order without appreciating the legal position which is fit to be aside. In the result, we find merit in this revision application which is accordingly allowed. The impugned order dated 26.07.95 is hereby set aside and the passed by the Appellate Court dated 01.11.1993 is restored.” 8. The commissioner, Commercial Tax has wrongly passed the order without appreciating the legal position which is fit to be aside. In the result, we find merit in this revision application which is accordingly allowed. The impugned order dated 26.07.95 is hereby set aside and the passed by the Appellate Court dated 01.11.1993 is restored.” 8. It is alleged by plaintiff/appellant that as a consequence of order of the Commercial Tax, Tribunal Ranchi dated 25.11.2003 the plaintiff/appellant is entitled to get refund of the penalty amount along with prevailing rate of interest i.e. at the rate of 18 per cent per annum calculated from 20.02.1993 i.e. the date of deposit by the plaintiff. Accordingly, on several occasion the plaintiff visited to the office of the respondent no. 6, Assistant Commissioner Commercial Tax Officer, IB, Dhanbad to get refund of the said fine amount but on one pretext or other, he started avoiding to make payment. Thereafter, the plaintiff send letters dated 12.12.2003 and 11.03.2005 but the defendant did not pay any heed to repay the amount illegally received from the plaintiff nor send any reply to the above legal notice. Letter No. 896 dated 19.09.2006 was sent by Additional Collector (supply) Dhanbad with some query which was replied by the plaintiff vide letter dated 05.10.2006 through his lawyer but due to inaction on the part of defendants the plaintiff/appellant has instituted Money Suit No. 35 of 2006 seeking relief from defendants for returning of Principal amount Rs. 48,432/-illegally deposited as fine and Rs. 1,19,869,58 paise as interest at the rate of 18 % per annum from 20.02.1993 to 20.11.2006 along with cost of the suit. 9. The defendant nos. 1 to 6 were debarred from filing their written statement vide order dated 13.06.2007 and the case was fixed for hearing under Order 8 Rule 10 CPC. Thereafter, an application dated 09.01.2009 was filed only on behalf of defendant no. 1, State of Jharkhand for accepting its written statement, which was also rejected vide order 09.10.2009. 10. The learned trial court has formulated sole issue for adjudication as under:- “Whether defendants are liable to pay sum of Rs. 1,68,301.58 paisa with pendente lite and future interest at the rate of 18 % per annum till realization to the plaintiff M/s Anil Automobile or not? 11. 10. The learned trial court has formulated sole issue for adjudication as under:- “Whether defendants are liable to pay sum of Rs. 1,68,301.58 paisa with pendente lite and future interest at the rate of 18 % per annum till realization to the plaintiff M/s Anil Automobile or not? 11. In order to substantiate his case, the plaintiff has examined two witnesses and also adduced following documentary evidence, Ext. 1:- Carbon Copy of letter dated 12.12.03; Ext. 2:-Carbon Copy of Vakalatan Notice Dated 23.08.06; Ext-1/1: Letter dated. 11.03.05; Ext-3 to 3/4:-Five Postal Registry Receipt; Ext-4 to 4/2:-Three Acknowledgements Ext.1/2:-Letter dt. 19.09.2006; Ext. 1/3:-Letter dt. 05.10.2006; Ext. 5:-From C Sec. Rule 10(a) No. 3235 Patna dt. 18.11.70; Ext. 6:-Xerox copy of Judgment in Revision Petition No. DN 542/01; Ext. 7:-C.C. of Judgment passed in Revision Petition No. DN. 542/01 by the Commercial Taxes Tribunal, Ranchi. Dated 26.11.03; 12. Learned trial Court after considering the oral and documentary evidence adduced by the plaintiff arrived at conclusion that the fine amount imposed as penalty by the defendant no. 6 of Rs. 48,432/-was challenged before the higher authorities and held to be not justified under law by the Hon’ble Commercial Tax Tribunal, therefore, plaintiff was entitled to refund all the said fine amount with interest. Therefore, decreed the suit directing the defendants to pay a sum of Rs. 1,68,301.58 paisa along with interest at the rate of 18 % from 20.11.2006 onwards till realization and also directed to deposit the said amount within three months. 13. The Judgment and decree passed by learned trial court was assailed by the defendant/respondent nos. 1 to 6 vide Money Appeal No. 2 of 2012 before the Principal District Judge, Dhanbad mainly on the ground that:- (i) As per Section 55 of the Bihar Finance Act, 1981 no appeal or revision was allowed against the assessment order. (ii) The learned trial court has debarred the defendants from filing their written statement and also rejected the written statement of State of Jharkhand which caused prejudiced to the appellants. (iii) The fine amount/penalty was not deposited by the plaintiff/respondent rather by the driver of the truck bearing registration no. BR 17A 4754 namely, Md. Mumtaj Hussain who never filed any application to refund in the prescribed form before the prescribed authority. 14. (iii) The fine amount/penalty was not deposited by the plaintiff/respondent rather by the driver of the truck bearing registration no. BR 17A 4754 namely, Md. Mumtaj Hussain who never filed any application to refund in the prescribed form before the prescribed authority. 14. The learned appellate court has decided the issue as to whether there is any illegality in the impugned Judgment or not; and whether the impugned Judgment is sustainable in the eye of law or not, on the basis of evidence adduced by plaintiff and recorded findings that admittedly respondent no. 6 has imposed fine of Rs. 48,432 under Section 31(3) of the Bihar Finance Act which was set aside by the Hon’ble Commercial Tax Tribunal and an order of JCCT(appeal) dated 01.11.1993 was restored (Exhibit 7) but the learned appellate court while deciding question in issue travelled beyond the admission of the appellants/defendants that the said fine amount was deposited by the driver of the truck bearing registration no. BR 17A 4754 and not by the plaintiff and as such plaintiff has failed to bring on record any documentary evidence/receipt that he has deposited fine amount. Hence, the appellate court set aside the Judgment and decree of learned trial court and allowed the appeal which has been assailed in this second appeal by the plaintiffs/appellants on following substantial question of law:- (i) Whether when the Commercial Tax Tribunal came to a finding that the imposition of penalty is not proper and order passed in favour of the appellant, the court below was justified in reversing the order of the trial court? (ii) Whether appellate court below erred in law in deciding the appeal without deciding the question of limitation, although there is an order of the appellate court dated 08.03.2013 that the limitation shall be decided at the time of hearing of the appeal. 15. Learned counsel for the appellant assailing the impugned judgment of appellate court has submitted that before the learned appellate court the appeal against the judgment and decree passed by learned trial court was preferred with a delay of 213 days. 15. Learned counsel for the appellant assailing the impugned judgment of appellate court has submitted that before the learned appellate court the appeal against the judgment and decree passed by learned trial court was preferred with a delay of 213 days. The learned lower appellate court vide order dated 08.03.2013 admitted the money appeal subject to condonation of delay to be heard at the time of final hearing but in spite of final judgment passed in the first appeal the question of limitation was never considered and delay was never condoned hence, decision on merits without condonation of delay is vitiated under law. It is further argued that learned appellate court has acted beyond its jurisdiction while not taking into consideration the specific admission of the respondent that on behalf of present appellant penalty imposed by the department was deposited and goods & vehicles were released. If the amount itself has been admitted to be deposited, then mere production of receipt is a bare formality and cannot throw the appellant to be non-suited. The judgment of appellate court is also against the principles of equity, justice and good conscience which prevents un-just enrichment of one person at the cost of another. When the department has illegally received the penalty amount then it is bound to restore/refund the same to the person at whose instance it was deposited and cannot retain it without any lawful justification. Therefore, impugned judgment and decree passed by learned lower appellate court is absolutely illegal and fit to be set aside and this appeal may be allowed. 16. On the other hand learned counsel for the respondents has submitted that the learned appellate court below has very wisely and aptly, apprised the materials available on record and passed a reasoned judgment which suffers from no illegality or infirmity calling for any interference in this appeal which is fit to be dismissed. 17. Now reverting back to the substantial question of law involved in this second appeal as regards final disposal of first appeal by the learned court below on merits without condoning the delay of 213 days is concerned it appears that the mandatory provision of Order 41 Rule 3(A) CPC has been ignored by the concerned appellate court. The relevant provision is extracted hereunder:- Order XLI Rule 3(A) 3A. The relevant provision is extracted hereunder:- Order XLI Rule 3(A) 3A. Application for condonation of delay.--(1) When an appeal is presented after the expiry of the period of limitation specified therefore, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period. (2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under Rule 11 or Rule 13, as the case may be. (3) Where an application has been made under sub-rule(1), the Court shall not make an order fact the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under rule 11, decide to hear the appeal. 18. In the instant case, it is admitted fact that first appeal was preferred by respondents against the Judgment and decree of learned trial court dated 24.09.2011 passed in Money Suit No. 35 of 2006 which was filed after delay of 213 days. It appears that vide order dated 03.07.2012 learned appellate court directed to issue notice to the respondents for hearing on the point of limitation. The respondents/present appellant was duly served with notice but did not file any objection/rejoinder against the limitation petition. Accordingly, vide order dated 08.03.2013 detailed order was passed as under:- “Heard on the point of admission as well as condonation of delay. It has been submitted on behalf of the appellant that delay has been caused due to obtaining sanction/approval of the competent authority by filing of the present appeal. So delay may be condoned and appeal may be admitted. On call no one turned up on behalf of respondents. Only attendance through lawyer has been filed. It appears that notice has been served upon the respondents and attendance through lawyer has been filed since 04.01.2013 without vakalatnama. Today also attendance through lawyer has been filed on behalf of the respondents but no one turned up on behalf of the respondents and rejoinder has also not been filed. This shows that respondent has no any objection in admitting this appeal. Today also attendance through lawyer has been filed on behalf of the respondents but no one turned up on behalf of the respondents and rejoinder has also not been filed. This shows that respondent has no any objection in admitting this appeal. Hence, considering the facts, this money appeal is admitted subject to condonation of delay will be heard at the time of final hearing………………” 19. From the aforesaid order of the appellate court it transpires that present appellant has not raised any objection at the very stage of admission of the appeal on the ground of limitation and has taken the matter very lightly and also participated in the hearing on merits without raising aforesaid objection at any stage of the proceeding. Under aforementioned circumstances, it may be deemed that matter of delay has been properly discussed by the appellate court and thereafter entered into decision on merits. As such above objection holds no much water at the present stage of second appeal. 20. The foremost important question of law involved in this appeal is pertaining to decision of the Commercial Tax Tribunal which finally hold that imposition of penalty due to want of Form 28B of Bihar Finance Act, 1981, which was not required for the purpose of transportation of the goods in the seized vehicle. Hence, imposition of penalty was not proper and justified under law. In that view of the matter reversal of above decree passed by concerned trial court by the first appellate court is justified or not. 21. It is admitted position in this case that the plaintiff purchased mobil goods from M/s Indian Oil Corporation Ltd. worth Rs. 1,57,695/-which was dispatched by IOC from Bastacola, Jharia (Dhanbad) to the plaintiff vide Truck No. BR 17A 4754 along with cash memo no. 827440 dated 19.02.1993. The vehicle was intercepted and seized by Commercial Tax Officers of I.B. due to non-production of road permit in form no.-28B of Bihar finance Act, 1981. As per direction of Commercial Tax Officer, the plaintiff appeared on 20.02.1993 and explained that no goods permit was required for transporting the said goods and there is no contravention of Bihar Finance Act, 1981. In spite of that the penalty of Rs. 48,432/-was imposed under Section 31(3) of Bihar Finance Act, 1981 which was paid by the plaintiff. As per direction of Commercial Tax Officer, the plaintiff appeared on 20.02.1993 and explained that no goods permit was required for transporting the said goods and there is no contravention of Bihar Finance Act, 1981. In spite of that the penalty of Rs. 48,432/-was imposed under Section 31(3) of Bihar Finance Act, 1981 which was paid by the plaintiff. The plaintiff/appellant challenged imposition of penalty before the higher authorities and ultimately before the Commercial Tax Tribunals vide Revision Petition No. DN 542 of 2001 which was allowed vide order dated 25.11.2003 and order passed by Joint Commissioner (Appeal) Dhanbad Division dated 01.11.1993 was restored and it was held that imposition of penalty by the concerned officer was not justified under law. It is also evident that in spite of correspondence done with the respondents no refund of illegally realize penalty was made, hence money suit was instituted. It is also evident that the respondents have deliberately failed to contest the suit and were also debarred from filing their written statement which was never challenged before the higher forum. The learned trial court has decreed the suit after taking oral as well as documentary evidence adduced by the plaintiff/appellant and also considering the argument of learned GP on behalf of State. 22. After considering overall aspects of the case, the learned trial court found the plaintiff to be entitled to the refund of penalty amount of Rs. 48,432/-along with interest at the rate of 18 % per annum from 20.02.1993 till its realization. From perusal of the impugned judgment passed by first appellate court it appears that the judgment of the learned Appellate Court is based upon extraneous facts and conjecture that the appellant/plaintiff has filed no receipt of deposit of the fine amount of Rs. 48,432 as well as he can’t claim refund of the said amount and allowed the appeal setting aside the judgment of concerned trial court. 23. In the instant case, at the stage of trial the defendants/respondents never disputed the deposit of penalty amount. It is also not disputed that on issuance of direction by the Commercial Tax Officer of I.B. the appellant appeared and also explained that no permit is required in form 28-B Bihar Finance Act, 1981 for transportation of goods seized in this case. In spite of that penalty was imposed which was also deposited and goods and vehicles were released. It is also not disputed that on issuance of direction by the Commercial Tax Officer of I.B. the appellant appeared and also explained that no permit is required in form 28-B Bihar Finance Act, 1981 for transportation of goods seized in this case. In spite of that penalty was imposed which was also deposited and goods and vehicles were released. It is evident that the order passed by Commercial Tax Officer was ultimately quashed by the higher forum and it was found that there was no contravention of the Section 31 (3) of Bihar Finance Act, 1981 in the instant case. Under such circumstance the penalty illegally imposed upon the appellant is required to be refunded as per doctrine of equity, justice and good conscience which prevents unjust enrichment. The respondents have never challenged the revisional order passed by Commercial Tax Tribunal declaring the imposition of penalty is not justified under law. Therefore, merely on the ground that penalty amount was deposited by the driver of the vehicle and not by the present appellant and receipt of deposited is not produced is not sufficient to discard the genuine claim of the appellant/plaintiff which was never contested on such ground by the respondents. 24. In view of above discussion and reasons, I find that judgment of reversal passed by First Appellate Court is absolutely beyond the weight of evidence and devoid of any sound reasoning rather it is based on conjecture and surmises. As such impugned judgment and decree passed by lower appellate court in Money Appeal No. 02 of 2012 dated 30.11.2016 and 08.12.2016 is hereby, set aside and judgment and decree passed by learned trial court in Money Suit No. 35 of 2006 is hereby upheld and confirmed. The appellant is entitled to refund of Rs.48,432/-along with interest at the rate of 18 % per annum from 20.02.1993 up to the date of realization. 25. In view of aforesaid discussion and reason, this appeal is allowed.