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2022 (7) TMI 88 - HC - Central ExciseShort paid duty by firm - liability of the partners to make good such shot paid duty - joint and several liability - two / three partnership firms with common partners (or relatives of partners) - Seeking direction to respondents to accept the form of declaration and to undertake process of verification by designated committee - seeking direction to issue statement under sub-section (1) and (4) of Section 127 of the Act and issue discharge certificate - HELD THAT:- Indisputably one composite show cause notice was issued in the case on hand. The writ applicant cannot be held liable for the alleged duty short paid by M/s Sunshine Corporation. In the show cause notice nowhere it has been stated that M/s Sunshine Paints (writ applicant) is jointly and severally liable for the alleged duty short paid by M/s Sunshine Corporation. The reason is not far to seek. The liability alleged to have been incurred by M/s Sunshine Corporation is for the period of F.Y. 2001 to 2002, 2002 to 2003 and 2003 to 2004 during which the writ applicant was not in existence at all. The partners of the writ applicant firm cannot be made liable to make good the duty alleged to have been short paid by M/s Sunshine Corporation. In other words M/s Sunshine Corporation cannot be considered as a co-noticee for the purpose of the said scheme. A co-noticee is the one who is liable for the very same amount along with the others. Such is not the case on hand. When the notice segregates the liability and the demand is made separately from M/s Sunshine Corporation the reason given for rejecting the declaration would not be sustainable in law. Whether the writ applicant can be treated as co-noticee? - HELD THAT:- It is apparent that the Sunshine Corporation is being considered as principal noticee whereas M/s. Sunshine Paints (writ applicant) has been considered as the co-noticee for the sole reason that the writ applicant took over the business of M/s. Sunshine Corporation. As noted, for the period during which M/s. Sunshine Corporation incurred liability writ applicant firm was not even in existence and in such circumstances, the writ applicant cannot be treated as a co-noticee. Bombay High Court in the case of THOUGHT BLURB VERSUS UNION OF INDIA AND ORS. [2020 (10) TMI 1135 - BOMBAY HIGH COURT] after examining the budget speech of the Hon'ble Finance Minister while introducing the scheme as well as considering the statement and objects of the scheme and the views expressed by the Board held that a liberal view is required to be taken to make the scheme successful - Similarly, in JYOTI PLASTIC WORKS PVT. LTD., JAI PLASTICS, N.D. PATEL VERSUS UNION OF INDIA [2020 (11) TMI 156 - BOMBAY HIGH COURT], a Division Bench of Bombay High Court took note of the objective of the scheme and thereafter took the view that a reasonable and pragmatic approach has to be adopted. The decision of the committee dated 11.2.2020 is set aside and the matter remitted to the committee (respondent No.2) to take a fresh decision in accordance with law after giving due opportunity of hearing to the writ applicant by treating its declaration under the litigation category as a valid declaration - matter on remand.
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