- (1.) The subject matter of challenge in this appeal is an order dated 17th April, 2013 by which an application seeking restoration of the appeal was dismissed. The appeal was dismissed on 17th September, 2012 on merits in the absence of the learned advocate for the appellant. When the application for restoration came up for hearing, the learned Tribunal, without going into the question as to whether the appellant had made out a ground for restoration, dismissed the application on the ground that the appeal itself was unmeritorious. Mr. Roy, learned advocate appearing for the Revenue, submitted that the appellant could have challenged the order dated 17th September, 2012, which they did not do. The present appeal, according to him, does not disclose any important question of law. Therefore, this appeal cannot be entertained by this Court.
(2.) We have not been impressed by the submission made by Mr. Roy for the following reasons: (a) The order dated 17th September, 2012 dismissing the appeal on merit could not have been passed in the absence of the learned advocate for the appellant. If the learned advocate for the appellant was not present, the appeal could have been dismissed for default, but the appeal could not have been dismissed on merit without hearing the learned advocate for the appellant. Therefore, that order dismissing the appeal is clearly bad. (b) The application for restoration made by the appellant was a correct step, according to us, because the appeal had been dismissed ex parte. The Tribunal did not apply its mind nor did try to find out whether any ground had been made out for the purpose of recalling the ex parte order dated 17th September, 2012 dismissing the appeal. They purported to dismiss the application on the ground that the appeal itself was unmeritorious, which they could not have done. (c) We are satisfied that both the orders dated 17th September, 2012 and 17th April, 2013 were passed without application of mind.
(3.) The order under challenge is, therefore, set aside. The order dated 17th September, 2012 is also set aside.;