Merits ex parte notice binds the tribunal: appeal cannot be dismissed for default after assuring a merits decision.

Where a tribunal serves notice that an appeal will be disposed of on merits ex parte if the appellant does not appear, it must act consistently with that notice. Under the Orissa Sales Tax Rules, the appellant was entitled to expect a merits-based decision on the record, not a dismissal for default. The High Court held that dismissing the appeal for non-appearance in those circumstances was contrary to the notice, prejudicial to the assessee, and legally unsustainable. The dismissal order was set aside and the appeals were restored for fresh disposal according to law.

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Issues: Whether an appellate tribunal, after serving a notice stating that the appeal would be disposed of on merits ex parte if the appellant did not appear, could dismiss the appeal for default instead of deciding it on merits.

Analysis: Rule 58 of the Orissa Sales Tax Rules, 1947 required the notice of hearing in Form XXV to state that the Tribunal would hear and decide the appeal ex parte if the appellant did not appear, while Rule 60 conferred an option to either dismiss the appeal or decide it on merits in the absence of the appellant. The notice served on the assessee conveyed that the appeal would be disposed of on merits ex parte. On that representation, the assessee was entitled to assume that the Tribunal would consider the record and give a reasoned decision even if he did not appear. A dismissal for default in those circumstances was inconsistent with the notice and caused prejudice.

Conclusion: The Tribunal could not dismiss the appeal for default after giving notice that it would be disposed of on merits ex parte. The dismissal order was set aside and the appeals were directed to be restored and decided according to law.

Final Conclusion: Relief was granted to the assessee by undoing the default dismissal and requiring fresh disposal of the appeals on merits.

Ratio Decidendi: Where a party is notified that a matter will be decided on merits ex parte, the deciding authority cannot instead dispose of it by dismissal for default to the party's prejudice.

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