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2019 (4) TMI 426 - AT - Central ExciseClandestine removal - undervaluation of excisable goods - death of sole proprietor - abatement of proceedings or not - Held that - The appellant was a sole proprietorship concern and Sh. Harilal M. Patel was the sole proprietor of the appellant firm who died on 27.12.2011 when the appeal was pending before this Tribunal. Further, Mr. Ashok Kumar S/o Sh. Harilal M. Patel, has not come forward to defend the case of the appellant rather he has filed an affidavit saying that he has no concern with the proprietorship concern and he has not succeeded to the said business and has distanced himself from the appellant. In view of the Apex Court decision in the case of Shabina Abraham v. Collector of Central Excise 2015 (7) TMI 1036 - SUPREME COURT no recovery proceedings can be initiated against the dead person. The present appeal abates after the death of the sole proprietor, Sh. Harilal M. Patel.
Issues:
1. Abatement of appeal due to death of sole proprietor. 2. Legal representation and succession in case of death of sole proprietor. 3. Interpretation of abatement rules under CESTAT Procedure Rules. 4. Jurisdiction of the Tribunal in cases of abatement of appeal. Analysis: Issue 1: Abatement of appeal due to death of sole proprietor The appeal in question was directed against an order confirming a demand against a proprietorship concern, M/s New Sharada Industries, after the death of the sole proprietor, Sh. Harilal M. Patel. The Tribunal had earlier held that the appeal abates upon the death of the proprietor, citing various legal precedents. However, the High Court allowed the Revenue's appeal, setting aside the Tribunal's order and remanding the case for fresh consideration. Despite directions from the High Court, the legal representative of the deceased proprietor did not appear to defend the case. The Tribunal, after considering the circumstances, proceeded to decide the appeal based on the material on record, ultimately holding that the appeal abates after the death of the sole proprietor. Issue 2: Legal representation and succession in case of death of sole proprietor The legal heir of the deceased proprietor, Mr. Ashok Kumar, distanced himself from the proprietorship concern and stated that he did not acquire the business during his father's lifetime. He cited legal precedents to support the position that no recovery proceedings can be initiated against a deceased person. The Tribunal found that Mr. Ashok Kumar did not come forward to defend the case and held that the appeal abates after the death of the sole proprietor, as no legal successor actively pursued the matter. Issue 3: Interpretation of abatement rules under CESTAT Procedure Rules Rule 22 of the CESTAT Procedure Rules states that an appeal shall abate on the death of the appellant unless an application is made for continuance of the proceedings by the successor-in-interest. The Tribunal noted that the appellant was a sole proprietorship concern, and the death of the sole proprietor led to the abatement of the appeal. The Tribunal considered the legal provisions and the circumstances of the case to arrive at the decision that the appeal abates after the death of the sole proprietor. Issue 4: Jurisdiction of the Tribunal in cases of abatement of appeal The Tribunal emphasized that the abatement of the appeal does not extinguish the detriment faced by the appellant but terminates the appeal that was in progress. The Tribunal clarified that the continuance of the appeal by a legal successor is a privilege granted by the Tribunal, which was not sought or granted in this case. The Tribunal highlighted the statutory consequences of the abatement of the appeal and declined to entertain the re-consideration sought by the respondent-Commissioner against the deceased appellant, emphasizing the limitations of appellate jurisdiction in such cases. This detailed analysis covers the key issues addressed in the legal judgment, providing a comprehensive understanding of the Tribunal's decision regarding the abatement of the appeal due to the death of the sole proprietor and related legal implications.
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