2017 (4) TMI 333 - HC - Central Excise

Recovery of dues of sole proprietor concern - both proprietress as well as power of attorney holder of concern died - whether the dues of such concern can be recovered from legal heirs of the owners? - Held that - The law itself does not permit continuation of the recovery proceedings against the heirs and legal representatives of sole proprietors/proprietress who are carrying on business of manufacturing of excisable goods as a sole proprietor/proprietress. Their concern, after their death, therefore, does not exist and the heirs of such deceased sole proprietor/proprietress cannot be proceeded against in the absence of a clear legal stipulation. The Revenue can proceed by taking recourse to ordinary civil law. The Revenue can institute such legal proceedings as are permissible under the general law and upon success therein, it can enforce and execute the order/decree by even attaching the movable and immovable properties, including the subject property if otherwise permissible in law - petition allowed - decided in favor of petitioner.

Summary

Issues:
1. Maintainability of recovery proceedings against the legal heir of a deceased sole proprietress.
2. Legality of attaching immovable property in execution of an adjudication order against a sole proprietary concern.

Issue 1: The petitioner claimed to be the legal heir of a deceased sole proprietress, Mrs. Mira S. Agarwal, who was engaged in the business of processing excisable goods. The Central Excise officers sought to recover dues by attaching an immovable property after the demise of Mrs. Agarwal and her husband. The main contention was whether the recovery proceedings against the legal heir were maintainable. The court focused on whether the subject immovable property could have been attached in enforcement of the adjudication order passed against the sole proprietary concern. The court clarified that the legal heirs of deceased sole proprietors carrying on business as sole proprietors cannot be proceeded against in the absence of a clear legal stipulation, as per a judgment of the Hon'ble Supreme Court. The court allowed the writ petition, setting aside the attachment order and warrant.

Issue 2: The court emphasized that the recovery proceedings against the legal heirs of deceased sole proprietors engaged in manufacturing excisable goods as sole proprietors are not permissible under the law. The court referred to a judgment of the Hon'ble Supreme Court which bound them, leading to the decision to disallow the attachment and allow the writ petition. The court further clarified that the Revenue could pursue legal proceedings under general law to enforce and execute orders or decrees, including attaching movable and immovable properties if permissible. The judgment highlighted that all contentions regarding this matter were kept open, indicating that the Revenue could still take legal action under general law.

In conclusion, the High Court of Bombay held that the recovery proceedings against the legal heir of a deceased sole proprietress were not maintainable, as per the legal position established by the Hon'ble Supreme Court. The court disallowed the attachment of the immovable property in execution of the adjudication order against the sole proprietary concern. The Revenue was directed to pursue legal proceedings under general law for enforcement, with the clarification that all contentions on this matter were left open.