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2021 (12) TMI 619 - AT - Service TaxAbatement of appeal after the death of the sole proprietor of sued sole proprietorship concern - Rule 22 of Customs, Excise and Service Tax Appellate Tribunal (Procedure Rules), 1982 - HELD THAT - Section 4 (3) (a) of Central Excise Act where the definition of person is there in accordance to said definition sole proprietorship is the sole person and with his death the appeal even of Revenue has to abate. Further is observed that Rule 22 prescribes for a period of limitation of 60 days from the date of the death. The sole Proprietor of respondent assessee expired on 15.10.2020. The impugned request of abatement for the first time was raised on 11.11.2021. However, Hon ble Apex Court vide in IN RE COGNIZANCE FOR EXTENSION OF LIMITATION 2021 (11) TMI 387 - SC ORDER has ordered for exclusion of period w.e.f. 15 March, 2020 till 2nd October, 2021. After excluding the said period as directed by Hon ble Apex Court, the present application falls within the period of limitation prescribed under Rule 22 of CESTAT Procedure Rules. The appeal, accordingly, is hereby ordered to stands abated.
Issues:
Abatement of appeal after the death of the sole proprietor of respondent Proprietorship firm. Analysis: The case involved a Miscellaneous Application filed by the widow of the deceased proprietor of a respondent Proprietorship firm, seeking the abatement of the appeal filed by the Revenue after the sole proprietor's demise. The Legal representative of the deceased argued that she could continue to be sued in the present appeal, opposing the abatement. The key legal provision discussed was Rule 22 of Customs, Excise and Service Tax Appellate Tribunal (Procedure Rules), 1982, which mandates the abatement of proceedings unless an application for continuance is made by the successor-in-interest or legal representative of the deceased within 60 days of the event. The word "shall" in the rule indicates the mandatory nature of abatement in case of the sole proprietor's death, unless a valid application for continuance is made. The Tribunal referred to a case law highlighting that a sole proprietorship, being an individual entity, cannot be pursued legally after the sole proprietor's death. The judgment emphasized that the definition of a person under Section 4(3)(a) of the Central Excise Act implies a living person liable to pay duty, excluding deceased individuals. The ruling clarified that without specific provisions for proceeding against a deceased person's legal heirs, duties and sums do not become payable post-death. Additionally, the judgment discussed the limitation period for filing such applications, considering the exclusion of certain periods as directed by the Hon'ble Apex Court in a related matter. After analyzing the arguments and legal provisions, the Tribunal accepted the request on behalf of the respondent for abatement of the appeal. The decision was based on the clear legal mandate for abatement in case of the sole proprietor's death, the inability to pursue legal action against a deceased individual, and compliance with the limitation period as per the CESTAT Procedure Rules. The Miscellaneous Application was allowed, and the appeal was ordered to stand abated, bringing the matter to a conclusion.
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