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TMI Blog2022 (5) TMI 1249X X X X Extracts X X X X X X X X Extracts X X X X ..... , MEMBER (TECHNICAL) Shri Nilesh P. Sawant, Advocate, for the Appellant Shri Dilip Shinde, Assistant Commissioner, Authorised Representative for the Respondent ORDER This appeal is directed against the order-in-appeal No NA/CGST/A-I/MUM/76/19-20 dated 12.09.2019 of the Commissioner (Appeals) CGST CX, Mumbai. By the impugned order, the Commissioner (Appeals) has held as follows: 8. In view of the foregoing findings, I uphold the impugned Order in Original No Refund/VH/92/2017-18 dated 07.12.2017 passed by the Assistant Commissioner, CGST CX, Mumbai Central and reject the appeal filed by the appellant 1.2 By his order in original referred in the impugned order, Assistant Commissioner has held as follows: I hereby reject the refund of Rs 33,93,004/- (Rupees Thirty Three Lacs Ninety Three Thousand and Four only) to M/s Asmita Chitra under the provision of Section 11B of the Central Excise Act, 1944 as made applicable to Service Tax matters under Section 83 of Chapter V of Finance Act, 1994 2.1 Appellant is proprietorship concern of Ms Smita Avinash Talwalkar and was providing taxable services classifiable under category of Advertising Agency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led in terms of Section 11B of the Central Excise Act, 1944 as made applicable to Service Tax vide Section 83 of the Finance Act, 1994. The provision of Section 11B (1) which provides for filing of the refund claim are reproduced below: (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person: 4.3 In the present case the application under the said Section has been filed legal heir of the proprietress clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y due from them but which have escaped assessment. In paragraph 19, the majority held : It is plausible that a distinction ought to be made between the death of an individual and the dissolution of a firm. Human beings, as assessees, are not generally known to court death to evade taxes. Death, normally, is not volitional and it is understandable that on the death of an individual, his liability to be assessed to tax should come to an end unless the statute provides to the contrary. With firms it is different, because a firm which incurs during its existence a liability to pay sales-tax may, with a little ingenuity, evade its liability by the voluntary act of dissolution. The dissolution of a firm could therefore, be viewed differently from the death of an individual and the partners could be denied the advantage of their own wrong. But we do not want to strike this new path because the Jullundur case (supra) and the two cases which follow it have likened the dissolution of a firm to the death of an individual. Let us therefore, proceed to examine the other provisions of the 1953 Act. It then went on to quote Section 15(1) of the Bombay Sales Tax Act, 1953 and then arri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of 1953 even after the dissolution of an assessed firm, though on conditions specified in the section. The section contains a compelling implication that evident errors can be corrected no matter whether the firm is in existence or is dissolved. Dissolution is not a panacea for liability to pay sales- tax. It also added in paragraph 32 : It is indisputable that the first appellant firm was liable to be charged to sales tax on its business turnover. The charging provisions are contained in Chapter III of the Act of 1953 and Chapter II of the Act of 1959. In this appeal, we have to construe the machinery provisions of those Acts. In accordance with the view taken in the cases cited above, the machinery sections ought to be construed so as to effectuate the charging sections. The construction which we have placed on the machinery provisions of the 1953 Act will give meaning and content to the charging sections, in the sense that our construction will effectuate the provision contained in the charging sections. The resourcefulness and ingenuity which go into well-timed dissolution of firms ought not to be allowed to be used as convenient instruments of tax evasion. As obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly and severally liable to pay the tax due from the firm under the Act of 1959 or under any earlier law , whether such tax has been assessed before or after dissolution. Section 2(12) of the 1959 Act defines earlier law to mean, inter alia, the Bombay Sales Tax Act, 1953. Thus, one of the postulates of section 19(3) at any rate is that a dissolved firm could be assessed under the 1953 Act. Such a postulate accords with the principle that if the legislature provided for a charge of sales-tax, it could not have intended to render that charge ineffective by permitting the partners to dissolve the firm, an easy enough thing to do. Nothing, in fact, would be easier to evade a tax liability than to declare that the firm, admittedly liable to pay tax, has been dissolved. Section 19(3) of the 1959 Act not only makes clear what was necessarily implied in the 1953 Act, but it throws additional light on the true construction of the earlier law. But we thought it advisable to keep section 19(3) of the 1959 Act apart while construing the 1953 Act because it is the Courts, not the legislature, who have to construe the laws of the land authoritatively. As said in Craies on Statute Law : ..... X X X X Extracts X X X X X X X X Extracts X X X X
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