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2017 (12) TMI 721

SCN on legal heir of proprietor after the death of proprietor - Whether the SCN can be validly issued on the legal heir of the proprietor for duty allegedly short paid on the ground that his son legal heir is carrying the same business after the death of proprietor under the same name and style? - Held that: - the proprietor Birendra Singh, with respect to whom SCN was issued after his death, purportedly on the legal heir Shri Jasjit Singh is ab-initio avoid - it is of no consequence or help .....

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d on the ground that his son legal heir is carrying the same business after the death of proprietor under the same name and style. 2. One Shri Birendra Singh was Proprietor of M/s Premier Security Services, having his office at 309, Murli Bhawan, Ashok Marg, Lucknow, registered with Service Tax Department under Registration No.ANUPPS0452PST001, was engaged in providing Security Agency Service, Manpower Recruitment Agency, Cleaning Activity, etc. The said proprietor was regularly filing the retur .....

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s of such services and further mentioning that as per the gross turnover, total service tax for the period October, 2008 to March, 2009 amounts to ₹ 51,81,652/-, whereas amount deposited is ₹ 13,57,050/-. Thus, an amount of ₹ 38,24,602/- is short paid and such amount was directed to be deposited with interest and late fee. It is also mentioned that with respect to the letter dated 29th May, 2009 written to Mr. Jasjit Singh, he was directed to deposit the short paid service tax .....

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Thereafter, a show cause notice dated 20/10/2009 was issued mentioning that M/s Premier Security Services Proprietor Shri Birendra Singh with separate Service Tax Registration Number was engaged in providing security services. On the death of Shri Birendra Singh on 11th April, 2009, Shri Jasjit Singh S/o Late Birendra Singh had been authorized to act as Proprietor of the firm and shall take the promise, responsibility, dues, taxes, fees, cess, refunds, notices or any legal/procedural obligations .....

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Singh filed reply on merits and also sought opportunity of personal hearing. The SCN was adjudicated vide Order-in-Original dated 19th May, 2010, confirming demand of ₹ 33,39,092/- along with penalty under Section 78 of equal amount with interest and further penalty was also imposed under Section 76 & 77 of the Act. Being aggrieved, the appellant preferred appeal before the learned Commissioner (Appeals) who vide the impugned Order-in-Appeal dated 22nd March, 2011 was pleased to reject .....

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ecember, 1985, it was alleged that the said assessee had manufactured and cleared tread rubber from the factory premises by suppressing the fact of such production and removal with an intent to evade payment of Excise duty. The provisions of Section 11A of the Central Excise and Salt Act were invoked and duty amounting to ₹ 74.35 lakhs was sought to be recovered from the assessee together with proposal of penalty. On 14th March, 1989, the said Shri George Varghese died. As a result of his .....

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he High Court quashed the proceedings against the legal heirs stating that the Central Excise and Salt Act did not contain any provisions for continuing assessment against a dead person. Against this, revenue went in appeal. The Division Bench of the High Court of Kerala reversed the Single Judge's judgement. The Hon'ble Supreme Court on further appeal by the legal heirs held, it was impermissible to continue such assessment proceedings. In definition of assessee in Section 4(3) (a) of t .....

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person under Section 3(42) of General Clauses Act, 1897 was not applicable as it does not include legal representatives of deceased. It was further observed that in the case of taxing statutes, moral principle of unlawful enrichment is not applicable. Taxing statute must be interpreted in light of what is clearly expressed. Court cannot imply anything which is not expressed and it cannot import provisions in statute so as to supply any assumed deficiency. Accordingly the learned Counsel prays f .....

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Act can be continued against manufacturer if he had cleared the products paying duty less than what is liable under the Act. The demand is to be met, if it remains unpaid, by legal heirs even after the death of their predecessor-in-interest. The Hon'ble High Court further observed that suppose there had been a case of excess levy from the predecessor-in-interest. If the argument of the writ petitioner is accepted, it will lead to a situation that the legal heirs of the manufacturer who had p .....

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he said proprietorship concern of Shri Jasjit Singh is totally different from the earlier proprietorship concern of his late father Shri Birendra Singh. The Revenue have erred in issuing show cause notice on him after the death of late Birendra Singh. I also hold that the demand of tax, allegedly short paid collected from Shri Jasjit Singh when he approached the Department for registration under the same name and style, as his father was carrying on business, is also ab-initio void. Accordingly, .....

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