The payment of composition fee does not bar the right to appeal an order under Section 68 of the Bihar and Orissa Excise Act, 1915, and the Commissioner of Excise cannot dismiss an appeal for default of appearance in the absence of a provision in the statute or rules empowering him to do so.

1. In this case the petitioner Ambika Prasad has obtained a rule from the High Court calling upon the respondents to show cause why, the order of the Superintendent of Excise dated the 6th July, 1959, imposing a composition fee of Rs. 100.00 upon the petitioner in lieu of cancellation of licence, and the order of the Commissioner of Excise dated the 28th December, 1959, dismissing the appeal of the petitioner, and of the Board of Revenue dated the 4th June, 1960, dismissing a revision application of the petitioners, should not be set aside by the High Court by virtue of the authority granted under Article 227 of the Constitution.

2. Cause has been shown by the learned Government Pleader on behalf of the respondents to whom notice of the rule was ordered to be given

3. On the 6th May, 1959, the Superintendent of Excise, Gaya, visited the country spiritshop of the petitioner at Jehanabad and found that one of the bottles contained 18 ounces of country spirit instead of the prescribed quantity of 20 ounces. It was explained by the petitioner that the contents of the bottle had been partly drunk by an employee of the shop and so the quantity contained was less than the prescribed quantity. The explanation was rejected by the Superintendent of Excise who held the petitioner guilty of the charge of selling liquor in short measure and imposed a composition fee of Rs. 100/-under Section 68 of the Bihar and Orissa Excise Act in lieu of cancellation of the licence. The petitioner preferred an appeal against the order to the Collector of Gaya, but the appeal was dismissed. The petitioner took the matter in appeal again to the Commissioner of Excise, but on the 28th December, 1959, the Commissioner of Excise dismissed the appeal "for default because the petitioner was absent. The petitioner thereafter made an application in revision to the Board of Revenue, but the application was dismissed on the 24th June, 1960.

4. On behalf of the petitioner it was submitted by learned Counsel that the order of the Board of Revenue dated the 24th June, 1960 and of the Commissioner of Excise, dated the 28th December, 1959, are both illegal, ultra vires and without jurisdiction. With regard to the order of the Board of Revenue dated the 24th June, 1960 it was contended that both the grounds given by the Board of Revenue are erroneous as a matter of law. The Board of Revenue has stated in the first place that the petitioner had paid the composition fee of Rs. 100.00 on the 27th October, 1959, and since the payment had been made unconditionally the petitioner had no right to challenge the order of the Superintendent of Excise in appeal. In our opinion the Board of Revenue is not correct in saying that the petitioner had lost the right of appeal from the order of the Superintendent of Excise merely because he had paid the composition fee. The order of the Superintendent of Excise was an order passed under Sec. 68 of the Bihar and Orissa Excise Act, which is an appealable order under Section 8 of that Act. In our opinion the Board of Revenue is not correct in saying that the petitioner has forfeited the statutory right of appeal by payment of the composition fee. The second reason given by the Board of Revenue for dismissing the revision application is that the Excise Commissioner was right in dismissing the appeal on the ground of "default". In our opinion this line of reasoning is also not correct. Under the rules framed by the State Government under Section 89 of the Bihar and Orissa Excise Act there is no provision for dismissal of an appeal merely because the appellant had defaulted in making appearance before the appellate authority. The right of appeal is conferred by Section 8 of the Bihar and Orissa Excise Act which states:

"8. (1) The Collector shall, in all proceedings under this Act, be subject to the control of the Excise Commissioner, and shall, in such matters as the State Government may direct, be subject also to the control of the Co