Custom, Excise & Service Tax Tribunal
M/S M.K. Enterprises, Chandigarh vs Cce, Chandigarh-I on 6 July, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SCO 147-148, SECTOR 17-C, CHANDIGARH-160017 COURT NO.1 Appeal No. ST/60065/2016- (SM) (Arising out of the Order-in-Appeal No. CHD-EXCUS-001-App-0041-16-17 dated 29.04.2016 passed by the CCE (Appeals), Chandigarh-I) Date of Hearing/Decision: 06.07.16 For Approval & signature: Honble Mr.Ashok Jindal, Member (Judicial) 1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3. Whether their Lordships wish to see the fair copy of the order? seen 4. Whether order is to be circulated to the Department Authorities? Yes M/s M.K. Enterprises, Chandigarh Appellant Vs. CCE, Chandigarh-I Respondent
Appearance Sh. Naveen Bindal, Advocate - for the appellant Sh. R.K. Sharma, AR - for the respondent CORAM: Honble Mr.Ashok Jindal, Member (Judicial) FINAL ORDER NO: 60885/2016 Per Ashok Jindal:
The appellant is in appeal against the impugned order.
2. Before start of the proceedings, the Ld. Counsel for the appellant submits that as the proprietor of the appellant Sh. Mukesh Sharma has passed away on 17.05.2013, therefore, no proceedings against the appellant is sustainable in the light of the decision of Honble Apex Court in the case of Shabina Abraham reported in 2015 (322) ELT 372 (SC). He further submits that the said order has been followed by this Tribunal in the case of Sagar Engineering Works vide Final Order No. A/60345/2016 dated 26.05.2016 and in the case of Bharti Mulchand Chheda reported in 2016 (336) ELT 93 (Tri. Mumbai), therefore, the proceedings against the appellant is abates.
2. Heard the Ld. AR reiterated the finding in the impugned order.
3. Heard the parties and considered the submissions.
4. On careful consideration of the submissions made by the Ld. Counsel for the appellant, I find that proprietor Sh. Mukesh Sharma of the appellants firm has passed away on 17.05.2013 and the said facts were brought by the Ld. Counsel in the knowledge of the ld. Commissioner but the Ld. Commissioner instead of deciding the issued on merits and to follow the judgment of Honble Apex Court has observed as under:
I have considered at length the records of the case and the submissions made in the appeal memorandum as well as during the personal hearing. The appellant has canvassed that the proceedings should abate on account of the death of the proprietor of the appellant firm. I note that the instant proceedings are not original proceedings but appellate proceedings. The liabilities were determined in the original proceedings. The Ld. Advocate has not adduced the statutory basis of claim for abatement of appeal proceedings. Accordingly, the claim and objection on such ground is vacated.
5. The above observations made by the Ld. Commissioner (A) has ignored the decision of the Honble Apex Court in the case of Shabina Abraham (Supra) which is against the judicial proprietary and contrary to law laid down the Honble Apex Court. The Ld. Commissioner (A) had no respect to the decision of the higher form which clearly shows that he has done a grave error of law.
6. Further, I find that the issue has already been settled in the Honble Apex Court in the case of Shabina Abraham (supra) which has been followed by this Tribunal in the case of Sagar Engineering Works and Bharti Mulchand Cheeda (Supra) wherein this Tribunal has observed as under.
6. We find that the learned Commissioner was aware of the fact while passing the impugned order that the proprietor of M/s Canan Domestic Appliances had already expired on 12.11.2003 whereas the impugned order was passed on 29.09.2006. In fact this case was remanded by the Tribunal vide its order dated 15.02.2005 setting aside the order of the Commissioner of Central Excise and remanding the matter for de novo adjudication. Even at that time the proprietor was no more, but in spite of this, the learned Commissioner passed the impugned order against the dead person who was the sole proprietor of M/s Canan and Domestic Appliances, which is against the settled position of law as held by various decisions of the Tribunal cited above. We are of the considered opinion that once the factum of death of the sole proprietor has come to the knowledge of the learned commissioner, the learned commissioner should have dropped the proceedings rather than passing the impugned order, but he chose to pass the impugned order against the dead person, which is not sustainable in law.
7. Therefore, I hold that no proceedings are sustainable against the appellant in the light of the above judicial pronouncement. In these circumstances, the appeal filed by the appellant is disposed off with consequential relief, if any.
(Dictated and Pronounced in the open court) Ashok Jindal Member (Judicial) Rt 1