Non-service of notice can render an ex parte order void and prevent a recall application from being rejected as time barred.

A recall application alleging non-service of notice cannot be rejected as time barred until the tribunal first verifies service from its own record. Where a party was not served and had no opportunity of hearing, an ex parte order is liable to be treated as void and recalled. The tribunal must therefore determine whether notice was in fact served before applying limitation. On this reasoning, the impugned order was set aside and the matter was remitted for fresh consideration of the recall application after verification of service.

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Issues: (i) Whether the Tribunal was justified in rejecting the recall application as time barred without first determining whether notice of the appeal had been served on the assessee. (ii) Whether an ex parte order passed without service of notice is liable to be treated as a nullity and recalled.

Issue (i): Whether the Tribunal was justified in rejecting the recall application as time barred without first determining whether notice of the appeal had been served on the assessee.

Analysis: The application for recall was founded on the specific plea that the assessee had never been served with summons in the Revenue's appeal. If that plea was correct, the order had been passed without affording an opportunity of hearing and the question of treating the application as barred by time could not arise until the fact of service was examined from the Tribunal's record. The Tribunal was therefore required to decide the question of service first and then deal with limitation only if service was shown.

Conclusion: The Tribunal was not justified in dismissing the application as time barred without first examining service of notice.

Issue (ii): Whether an ex parte order passed without service of notice is liable to be treated as a nullity and recalled.

Analysis: An order passed in the absence of a party who was never served with notice is an order made without adequate opportunity of representation. Such an order cannot stand as a valid adjudication against that party and can be reopened on that ground. The Tribunal, however, had to ascertain from its record whether service had in fact been effected before drawing that consequence.

Conclusion: If notice had not been served, the ex parte order would be liable to be treated as a nullity and recalled.

Final Conclusion: The impugned order was set aside and the Tribunal was directed to decide the recall application afresh after verifying service from its record.

Ratio Decidendi: A recall application based on non-service of notice cannot be rejected as time barred unless the tribunal first determines whether notice was in fact served, because an order passed without service and opportunity of hearing is liable to be treated as void.

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