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2016 (8) TMI 36 - CESTAT BANGALORE

2016 (8) TMI 36 - CESTAT BANGALORE - 2017 (347) E.L.T. 180 (Tri. - Bang.) - Recovery proceedings against the person who is not alive to defend himself - Evasion of duty - by resorting to under-invoicing and clandestine removal of excisable goods - Held that:- the appellant was sole proprietorship concern and Shri Harilal M. Patel was the sole proprietor of the appellant-firm and he died on 27.12.2011 when the appeal was still pending. Further we find in view of the law cited supra no recovery pr .....

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against the order of the Commissioner dated 30.03.2007 vide which the learned Commissioner confirmed the demand against M/s. New Sharada Industries, the appellant. Briefly the facts of the present case are that the appellant is a proprietorship concern manufacturing flush doors, plywood and block boards etc classifiable under Chapter 44 of the Central Excise Tariff. Based on the information that the assessee was evading payment of duty by resorting to under-invoicing and clandestine removal of .....

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e notice by filing reply and after hearing both parties, the learned Commissioner confirmed the demand of central excise duty of ₹ 58,97,063/- (Rupees Fifty Eight Lakhs Ninety Seven Thousand and Sixty Three only) being the duty on the goods manufactured and removed during the period 18.01.2001 to 31.03.2005 under Section 11A(2) of the Central Excise Act 1944 and also confirmed the demand of education cess amounting to ₹ 25,595/- (Rupees Twenty Five Thousand Five Hundred and Ninety Fi .....

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person Shri Harilal M. Patel who was the sole proprietor of the appellant M/s. New Sharada Industries and who died on 27.12.2011, during the pendency of the present appeal. He further submitted that in the impugned order itself it has been observed that Harilal M. Patel was the proprietor of M/s. New Sharada Industries i.e. the appellant. He also submitted that after the death of the sole proprietor, Ashok Kumar K.H. who is the son of the sole proprietor has filed an affidavit to the effect that .....

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n to recover dues from him as the legal heir in view of the law laid down by the Tribunal in the case of Dhiren Gandhi V. CCE [2011 (266) E.L.T. 125 (Tri.-Bang.)] affirmed by the Hon ble Karnataka High Court in [2012 (281) E.L.T. 64 (Kar.)] and approved by the Hon ble Supreme Court in Shabina Abraham V. CCE [2015 (322) E.L.T. 372 (SC)]. 2.1. The learned counsel for the appellant further submitted that it is a settled law that no proceedings can be initiated against the dead person as it amounts .....

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Gandhi reported in 2012-TIOL-433-HC-KAR-CX=2012 (281) E.L.T. 64 (Kar.)=2012 (27) S.T.R. 452 (Kar.) e) Bharati Mulchand Chheda V. CCE, Mumbai-V reported in 2016 (336) E.L.T. 93 (Tri.-Mum.) 2.2. The learned counsel for the appellant further submitted that as per the Rule 22 of CESTAT Procedure Rules, the appeal shall abate on the death of the appellant. The said Rule is reproduced herein below: RULE 22. Continuance of proceedings after death or adjudication as an insolvent of a party to the appeal .....

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