JUDGMENT :

A. Pasayat, J. - Petitioner calls in question legality of order passed by Division Bench of Orissa Sales Tax Tribunal (in short, the 'Tribunal') holding that it has no power to restore an appeal decided ex parte on merits. The appeal in question is S. A. No. 1120/88-89.

2. The undisputed factual position is as follows :

The appeal was posted to 30-6-1994 for hearing and was disposed of ex parte in the absence of the present petitioner who was respondent in the appeal filed by the State. Petitioner filed an application for restoration of appeal on 17--11-1994, stating that on account of unavoidable difficulties, there was non-appearance. The Tribunal as indicated rejected the application on the ground that there is no provision fn the Orissa Sales Tax Act, 1947 in short, the 'Act') and Orissa Sales Tax Rules, 1947 (in short, the 'Rules') permitting restoration of a Second Appeal disposed of in the absence of respondent, on merits. It was observed that no decision either of this Court or apex Court was cited to substantiate the plea that Tribunal had power to do so, though reference was made to two appeals which were disposed of ex parte and were restored by Full Bench of the