2014 (5) TMI 411 - HC - Central Excise

Restoration of the appeal - Held that - it is no doubt true that the appeal filed by the petitioner no.2 before the tribunal stood dismissed on the basis of an application filed in this regard. The Four Corners of the applications would reveal that a specific stand was taken by the petitioner no.2 that the appeal is incompetent having abated on the death of the proprietor. The tribunal recorded the abatement by relying upon the statement made by the petitioner no.2 in the said application. It is indeed true that the appeal was taken out by the petitioner no.2 and not by the deceased proprietor and, therefore, the recording of an abatement even on the basis of the application taken out in this regard is a mistake committed by the tribunal. The petitioner was advised that the demand upon a deceased proprietor would perish automatically after the constitution of the partnership firm which has a separate legal entity. In fact, on the aforesaid plea, the earlier writ petition was filed before this Court which stood dismissed with a categorical finding that mere conversion of the proprietorship concern into a partnership firm does not evaporate the liability of the erstwhile concern. The petitioner tried to take shelter under a mistaken advice and also deriving a clue from the correction made in an order passed in an earlier writ petition. Section 35C does not provide for condonation of delay in making out an application beyond the stipulated period of six months from the date of the order. When the statute has provided the maximum period of limitation, the tribunal cannot pass an order condoning the delay of more than the prescribed period in absence of any express power to do so. Equally the Court cannot direct the authority to act contrary to the law - Decided against assessee.

Summary

Issues:
1. Application for restoration of appeal dismissed on the ground of limitation under Section 35 (C) (2) of the Central Excise Act, 1944.
2. Dispute regarding liability of a partnership firm for the dues of a deceased proprietor.
3. Interpretation of the power of the tribunal to recall its order and restore an appeal.

Analysis:
1. The petitioner challenged the order of the Customs, Excise and Service Tax Appellate Tribunal, Kolkata, which dismissed the application for restoration of an appeal based on the limitation provided under Section 35 (C) (2) of the Central Excise Act, 1944. The petitioner argued that the application was for recalling the order and restoration of the appeal, not rectification of a mistake apparent on the record. The petitioner contended that since the appeal was filed by a living petitioner, not the deceased proprietor, the abatement was incorrectly recorded by the tribunal. The tribunal's decision was based on the application filed by the petitioner, stating that the appeal had abated due to the death of the proprietor, leading to the dismissal of the appeal.

2. The dispute arose from the liability of a partnership firm, formed by the sons of the deceased proprietor, for the dues of the erstwhile proprietorship concern. The petitioner sought to establish that the partnership firm was distinct and separate from the proprietorship concern, and therefore should not be held liable for the obligations of the deceased proprietor. However, the court dismissed the earlier writ petition, emphasizing that the liability of the proprietorship concern does not vanish merely by transferring assets to a partnership firm. The petitioner's attempt to use the correction made in a previous writ petition as a basis for recalling the tribunal's order was deemed to be a mistaken approach.

3. The tribunal's power to recall its order and restore an appeal was a focal point of the legal debate. The petitioner argued that the tribunal had the authority to recall the order and restore the appeal under Rule 41 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules 1982. Citing precedents such as the case of J. K. Synthetics Ltd. vs. Collector of Central Excise, the petitioner contended that the tribunal's power to secure the ends of justice included the ability to set aside an order passed ex parte. However, the respondent maintained that the tribunal correctly rejected the application for restoration based on the prescribed period of limitation under Section 35 (C) (2) of the Act. The court upheld the tribunal's decision, emphasizing that the application was essentially for rectifying mistakes in the order, not for recalling the order of dismissal of the appeal.

In conclusion, the High Court dismissed the writ petition, finding no infirmity or illegality in the tribunal's order. The court highlighted the importance of adhering to statutory limitations and the need to interpret applications based on their substance rather than nomenclature. The judgment underscored the significance of legal advice and the consequences of taking inconsistent stands during legal proceedings.