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TMI Blog2017 (3) TMI 1443X X X X Extracts X X X X X X X X Extracts X X X X ..... /s.Vira Scooter cannot be continued in view of the decision of the Hon'ble Apex Court in the case of Shabina Abrahma [2015 (7) TMI 1036 - SUPREME COURT] - the proceedings against M/s.Vira Scooters abates. Penalties on all the co-noticees - Held that: - the allegation of clandestine manufacture and removal of the goods by M/s.Vira Scooters cannot be proved in the absence of Shri Vijay Jain of M/s.Vira Scooters, who has expired on 2.11.2011. Therefore, the benefit of doubt goes in favor of the co-noticees - penalties on co-noticees set aside. Appeal allowed - decided in favor of appellant. - E/1345,2055/2008-Ex (DB), E/1863-1864/2009-Ex (DB), E/1919-1922/2008-Ex (DB) And E/2156/2009-Ex (DB) - A/60460-60467/2007 - Dated:- 28-2-2017 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd proposing the penalty on all co-noticees. The matter was adjudicated, it was revealed that M/s.Vira Scooters was involved in the clandestine manufacture and removal of the goods without payment of duty. Consequently, the duty was demanded alongwith interest and seized goods were liable for confiscation and could be redeemed on payment of redemption fine and penalties on all the co-noticees were imposed. Aggrieved with the said order, all the notices are in appeal before us and for the demand dropped by the adjudicating authority during adjudication, the Revenue is in appeal. 4. Learned Counsel for M/s.Vira Scooters appeared and submitted that M/s.Vira Scooters was proprietorship firm and his proprietor was expired on 2.11.2011, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... torship firm owned by one Shri Vijay Jain who has expired on 2.11.2011. In that circumstance, the proceedings against M/s.Vira Scooter cannot be continued in view of the decision of decision of the Hon'ble Apex Court in the case of Shabina Abrahma (supra) which has been followed by the Tribunal in the case of M.K. Enterprises (supra) wherein this Tribunal has observed as under: 4. On careful consideration of the submissions made by the ld. Counsel for the appellant, I find that proprietor Sh. Mukesh Sharma of the appellant's firm has passed away on 17-5-2013 and the said facts were brought by the ld. Counsel in the knowledge of the ld. Commissioner but the ld. Commissioner instead of deciding the issued on merits and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Canan Domestic Appliances had already expired (on 12-11-2003 whereas the impugned order was passed on 29-9-2006. In fact this case was remanded by the Tribunal vide its order dated 15-2-2005 setting aside the order of the Commissioner of Central Excise and remanding the matter for de novo adjudication. Even at that time the proprietor was no more, but in spite of this, the learned Commissioner passed the impugned order against the dead person who was the sole proprietor of M/s. Canan and Domestic Appliances, which is against the settled position of law as held by various decisions of the Tribunal cited above. We are of the considered opinion that once the factum of death of the sole proprietor has come to the knowledge of the learned comm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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