Custom, Excise & Service Tax Tribunal
Kgs Mani vs Chennai-Iii on 25 September, 2023
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
CHENNAI
REGIONAL BENCH - COURT NO. I
Service Tax Appeal No. 41102 of 2014
(Arising out of Order-in-Appeal No. 33/2014 (M-III) (ST) dated 18.02.2014 passed by Commissioner of
Central Excise (Appeals), 26/1, Mahatma Gandhi Marg, Nungambakkam, Chennai - 600 034)
Mr. K.G.S. Mani ...Appellant
A-5, Lingam Enclave,
No. 8 & 9, Nana Street, T. Nagar,
Chennai - 600 017.
Versus
Commissioner of GST and Central Excise ...Respondent
Chennai Outer Commissionerate, Newry Towers, No. 2054, I Block, II Avenue, 12th Main Road, Anna Nagar, Chennai - 600 040.
APPEARANCE:
For the Appellant : Shri Brahadeeswaran V., Consultant & Chartered Accountant For the Respondent : Shri N. Sathyanarayana, Assistant Commissioner / A.R. CORAM:
HON'BLE MR. P. DINESHA, MEMBER (JUDICIAL) HON'BLE MR. VASA SESHAGIRI RAO, MEMBER (TECHNICAL) DATE OF HEARING/DECISION : 25.09.2023 FINAL ORDER No.40851/ 2023 Order : Per MR. VASA SESHAGIRI RAO Service Tax Appeal No. 41102 of 2014 has been filed by Mr. KGS Mani (the appellant herein) challenging the order of the Commissioner of the Central Excise (Appeals), Chennai vide order No. 33/2014 (M-III) (ST) dated 18.02.2014, confirming 2 ST/41102/2014 the demand of Service Tax in respect of Management and Business Consultancy Service and also Business Auxiliary Service and for imposition of penalties.
2.1 The facts of the case briefly stated are the appellant is an individual person who undertook Energy Audit in various industries to avoid energy wastage and to improve efficient usage of power. Further, the appellant had also acted as a sales agent for M/s. Enercon (India) Ltd. and had received Commission as consideration. The said services of the appellant were taxable under the categories of Management or Business Consultancy Service and also Business Auxiliary Service.
2.2 Consequent to the investigation conducted by the Department, the lower adjudicating authorities after due process of law, on adjudication, demanded Service Tax for the above services rendered along with interest and also imposed penalties. The appellant has raised the ground that his services were not advisory or consultancy in the field of management of business, but, these activities are relating to planning, organizing, staffing, directing, controlling and co-ordination of business activities which involves conduction of Energy Audit to identify the areas to pinpoint where energy was wasted and to suggest suitable measures and for which he received onetime fee or retainer fee every month and as such cannot be classified as 'Management Consultancy Services'.
3.1 When the case came up for hearing before the Tribunal on 25.09.2023, Mr. Brahadeeswaran V. Chartered Accountant representing the appellant has stated that their application under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 filed online could not be proceeded with due to some technical snag and whatever the amounts they paid in settlement of the dispute were re-credited to their account. To this effect, they have produced a copy of the SVDLRS-3 and a copy of Cyber receipt for payment of Service Tax and also a copy of their account maintained with the Indian Bank, Chennai.
3ST/41102/2014 3.2 The Ld. Consultant has intimated that the appellant Mr. KGS Mani died on 12.05.2019 and has enclosed a copy of the Death Certificate. The Death Certificate of Mr. KGS Mani is extracted below for ready reference:-
4. The Ld. Authorised Representative Shri N. Satyanarayana has appeared for the Department.
4ST/41102/2014
5. On the death of the appellant, the appeal stands abated in terms of provisions of Rule 22 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982. Rule 22 of the CESTAT (Procedure) Rules reads as under:-
"Rule 22. Continuance of proceedings after death or adjudication as an insolvent of a party to the appeal or application. - Where in any proceedings the appellant or applicant or a respondent dies or is adjudicated as an insolvent or in the case of a company, is being wound up, the appeal or application shall abate, unless an application is made for continuance of such proceedings by or against the successor-in-interest, the executor, administrator, receiver, liquidator or other legal representative of the appellant or applicant or respondent, as the case may be:
Provided that every such application shall be made within a period of sixty days of the occurrence of the event:
Provided further that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period so specified, allow it to be presented within such further period as it may deem fit."
6. After perusing the material on record, we find the Respondent has died on 12.05.2019 during the pendency of the present appeal. We also find that in terms of Rule 22 of Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982, on the death of the appellant, the proceedings will be abated unless an application is made for continuance of such proceedings. In this case, no such application is made. As the Death has occurred on 12.05.2019, nearly four years passed already.
7. We find that in view of the judgement of the Hon'ble Supreme Court in the case of Shabina Abraham & Ors. Vs. Collector of Central Excise & Customs [2015 (322) E.L.T. 372 (SC)], wherein it has been held that no proceedings can be initiated or continued against a dead person as it amounts to violation of natural justice in as much as the dead person, who is proceeded against is not alive to defend himself. It is apt to quote from the case of Shabina Abraham & Ors. Vs. CCE, "1. "Nothing is certain except death and taxes. Thus spake Benjamin Franklin in his letter of November 13, 1789 to Jean Baptiste Leroy. To tax the dead is a contradiction in 5 ST/41102/2014 terms. Tax laws are made by the living to tax the living. What survives the dead person is what is left behind in the form of such person's property. This appeal raises questions as to whether the dead person's property, in the form of his or her estate, can be taxed without the necessary machinery provisions in a tax statute. The precise question that arises in the present case is whether as assessment proceeding under the Central Excises and Salt Act, 1944, can continue against the legal representatives/estate of a sole proprietor/manufacturer after he is dead."
8. In view of the above, we hold that on the death of the appellant, the appeal stands abated. The appeal is accordingly disposed of.
(Order dictated in open court)
(VASA SESHAGIRI RAO) (P. DINESHA)
MEMBER (TECHNICAL) MEMBER (JUDICIAL)
MK