Ex parte appellate order remedy remains available where the assessee was not duly served, even after merits consideration.

A statutory application to set aside an ex parte appellate order was held maintainable under the proviso to rule 59(2) of the Punjab General Sales Tax Rules, 1949 where the assessee had not been duly served. The availability of the remedy depended on ex parte disposal and lack of proper service, not on whether the appellate tribunal had decided the appeal summarily or after examining the merits. The remedy for restoration was therefore competent even though the appeal had been considered on facts, and the substantive question on ex parte restoration was answered in the affirmative.

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Issues: Whether an application for setting aside an ex parte appellate order lies under the proviso to rule 59(2) of the Punjab General Sales Tax Rules, 1949, where the assessee was not duly served though the appeal was decided on merits.

Analysis: The proviso to rule 59(2) expressly contemplates an appeal decided ex parte, and the availability of the remedy does not depend on whether the Tribunal disposed of the appeal summarily or after considering the relevant facts. The material consideration is the ex parte disposal and lack of due service.

Conclusion: The application for setting aside the ex parte order and for restoration of the appeal was competent, and the question was answered in the affirmative.

Final Conclusion: The reference was answered only on the substantive question relating to restoration after ex parte disposal, while the remaining question was left unanswered.

Ratio Decidendi: A statutory remedy for setting aside an ex parte appellate order is available where the provision expressly permits it, and the fact that the appeal was decided on merits does not exclude that remedy if the assessee was not duly served.

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