2021 (2) TMI 158 - AT - Service Tax

Continuation of proceedings after death or adjudication as an In-solvent of a party to the appeal or application - appellant has died on 09/05/2019 during the pendency of the present appeal - Rule 22 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 - HELD THAT - As per the death certificate produced on record, the appellant has died on 09/05/2019 when the appeal was pending. We also find that the appellant was a proprietor and has died during the pendency of the proceedings. We also find that in view of Rule 22 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982, on the death of a proprietor, the proceedings shall abate. Hon ble Supreme Court in the case of SHABINA ABRAHAM AND OTHERS VERSUS COLLECTOR OF CENTRAL EXCISE CUSTOMS 2015 (7) TMI 1036 - SUPREME COURT has been held that no proceedings can be initiated against a death person as it amounts to violation of natural justice inasmuch as the death person, who is proceeded against, is not live to defend himself. Further as per Rule 22 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982, the appeal shall abate on the death of the appellant unless an application is made for continuation of such proceedings by or against the successor in interest, executor, administrator, receiver, liquidator or other legal representatives of the appellant or applicant or respondent, as the case may be - in the present case, the business of the appellant has not devolved upon any of his surviving heirs including the applicant, as per the application filed by the applicant. The application of the applicant is allowed and the present appeal stands abated.

Summary

Issues:
Abatement of appeal due to the death of the appellant.

Analysis:
The appellant's son filed a miscellaneous application seeking abatement of the appeal in accordance with Rule 22 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982, as the appellant, who was a PWD contractor, had passed away during the pendency of the appeal. The appellant's father had contested a show-cause notice issued in 2016, leading to the confirmation of service tax demand, interest, and penalty. The Commissioner (Appeals) partly allowed the appeal, prompting the deceased appellant to file the present appeal. The applicant, as the son of the deceased appellant, provided the death certificate and an affidavit to support the claim of the appellant's demise and the fact that the business had not devolved upon any surviving heirs.

The applicant argued that as per Rule 22, the appeal must abate due to the death of the appellant, citing the judgment in the case of Shabina Abraham Vs. CCE 2015(322) ELT 372 (SC). The learned AR acknowledged the appellant's death during the proceedings. The Tribunal, after reviewing the submissions and the record, noted the appellant's demise during the pendency of the appeal, as evidenced by the death certificate. Rule 22 stipulates that proceedings shall abate upon the death of a party unless an application is made by or against the successor-in-interest or legal representative.

Referring to the Supreme Court decision in Shabina Abraham's case, the Tribunal emphasized that proceedings cannot continue against a deceased person, as it violates natural justice. As the appellant's business had not transferred to any surviving heir, the Tribunal concluded that the appeal should abate in line with Rule 22. Therefore, the Tribunal allowed the applicant's application and ordered the abatement of the appeal, disposing of the matter accordingly. The operative part of the order was pronounced in open court on 22/01/2021.