TMI Blog2015 (8) TMI 1228X X X X Extracts X X X X X X X X Extracts X X X X ..... unal in passing the order on 25th April, 2011 recording abatement of appeal though at the instance of the appellant himself, was made in presence of the Department, which was aware about the identity of the appellant and the fact that it was the noticee who had died and not the appellant. This is how the gross mistake came about which by the miscellaneous application the writ petitioners sought to correct, but was turned down by the Tribunal - miscellaneous application of the writ petitioner was one for procedural review of the impugned order dated 25th April, 2011. We are of the opinion the Tribunal should have recalled the said order dated 25th April, 2011 in the light of Rule 41 to secure the ends of justice. In the facts and circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, or dominion or the ownership of that business; a business usually unincorporated, owned and controlled exclusively by one person, such business is commonly designated as sole proprietorship. Since in the present case, the proprietor had died, no penalty is imposable on the firm inasmuch as in a proprietary firm, the proprietor and the proprietary firm is the same. After his demise, no penalty is imposable on him inasmuch as the firm has got no separate entity. 3. By that order the Commissioner Central Excise, Kolkata-II Commissionerate, determined the noticee had to pay an amount of ₹ 97,86,300/- as Central Excise Duty and penalty of similar amount was imposed under the Central Excise Act, 1944. 4. Incidentally the noticee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is submitted that with the demise of the proprietor of M/s. Shree Ganesh Forging Co., the firm no more exists. The trade licence was surrendered, Central Excise Registration was surrendered. Sales Tax Registration Certificate was also surrendered and everything related to the said firm no more remained functional. Hence, the firm M/s. Shree Ganesh Forging Co., became extinct. It appears that being wrongly advised, the eldest son of Late M. Lakshmi Narayana being Shree M. Madhumurthy proceeded with the proceeding initiated under the show cause notice issued during the time when Late M. Lakshmi Narayana was alive, i.e., on 28-5-2007. But practically the case cannot be proceeded with the demise of the proprietor of the firm . By or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication made by the appellant was correctly adjudicated by the Tribunal by its order dated 4th March, 2014 to be one made under Section 35C(3) of the said Act, as also correctly not interfered with by the Writ Court. Mr. Saraf further submitted the conduct of the appellant was such that it was apparent he had not come with clean hands and in such circumstances was not entitled to any order under the Writ jurisdiction of the High Court. 8. It will appear from the facts noted above the adjudicating authority was aware the noticee had expired as evident from the Order-in-Original. It is also evident the order dated 25th April, 2011 was passed in the presence of the Junior Departmental Representative pursuant to the appeal containing the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... March, 2014, both of the Tribunal, are not such as could be said to be touching on the merits of the case which would involve a substantial question of law, rather it delves on the procedural aspect of the matter. Hence we accept the submission of Mr. Khaitan that the miscellaneous application of the writ petitioner was one for procedural review of the impugned order dated 25th April, 2011. We are of the opinion the Tribunal should have recalled the said order dated 25th April, 2011 in the light of Rule 41 to secure the ends of justice. In the facts and circumstances noted above, the Tribunal ought to have proceeded to have the appeal heard on merits. We direct accordingly. 11. There will be an order in terms of prayer (a) of the writ pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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