TMI Blog2019 (4) TMI 426X X X X Extracts X X X X X X X X Extracts X X X X ..... . In view of the Apex Court decision in the case of Shabina Abraham v. Collector of Central Excise [2015 (7) TMI 1036 - SUPREME COURT] no recovery proceedings can be initiated against the dead person. The present appeal abates after the death of the sole proprietor, Sh. Harilal M. Patel. - E/487/2007-DB - Final Order No.20311/2019 - Dated:- 29-3-2019 - MR. S.S GARG, JUDICIAL MEMBER And MR. C. J. MATHEW, TECHNICAL MEMBER None For the Appellant Mr. Pakshirajan, Asst. Commissioner, AR For the Respondent ORDER Per: S.S GARG The present appeal is directed against the impugned order dated 30.03.2007 passed by the Commissioner (A) whereby the Commissioner (A) has confirmed the demand against the M/s New Shar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeared on behalf of the appellant even the Counsel for the deceased, Sh. Harilal M. Patel, who has filed the present appeal also withdrew his Vakalat after the death of the deceased proprietor vide letter dated 20.09.2018. In view of all these circumstances, we will proceed to decide the appeal on the basis of the material on record. 2. Briefly the facts of the present case are that the appellant is a proprietorship concern manufacturing flush door, plywood and block boards etc. classifiable 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 excisable goods manufactured and sold by them, the officers of the DGCEI, Ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sole proprietor of the appellant died on 27.12.2011 during the pendency of the present appeal. He has also conceded that in the impugned order itself, it has been observed that Sh. Harial M. Patel was the proprietor of M/s New Sharada Industries i.e. the appellant. Further, we find that the appellant is a proprietorship concern and during the pendency of the appeal, its sole proprietor, Sh. Harilal M. Patel died as per the death certificate which is on record. We also find that Mr. Ashok Kumar, son of proprietor, Sh. Harilal M. Patel has also furnished an affidavit on record dated 11.05.2016 wherein he has also stated that he is not the transferee of the business, nor did he acquire the business during the lifetime of his father so as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant. 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 or application: Where in any proceedings the appellant or applicant or a respondent dies or is adjudicated as an insolvent or in the case of a company, is being wound up, the appeal or application shall abate, unless an application is made for continuance of such proceedings by or against the successor-in-interest, the executor, administrator, receiver, liquidator or other legal representative of the appellant or applicant or respondent, as the case may be: Provided that every such application shall be made within a period of sixty days of the occurrence of the event: Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ects of the proceedings, as pursued by the respondent herein, on the former occasion of its consideration by the Tribunal that, if left unremarked upon, could well set a precedent for future misadventures. It is common ground that the appellant is a sole proprietorship, that the mortal existence of the proprietor was extinguished during the pendency of the appeal, that none came forward to carry forward the litigation initiated by the deceased and that Revenue is not in appeal against the order impugned. Yet the statutory consequence of that dread finality on the dispute raised by the deceased sole proprietor sufficed to cause such grievance to the respondent-Commissioner as to take recourse to section 35G of Central Excise Act, 1944 with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant is, understandably, not before us in person to prosecute the appeal initiated by him and is, not surprisingly, represented through counsel or any other person. In appealing to the jurisdiction of the Hon ble High Court, it was not brought on record that the respondent-therein was, by mortality, unable to defend himself. And that appeal was, thereby, compelled to be decided without a notice to the named respondent an ex parte order arising from neither negligence nor unwillingness, neither concurrence nor indulgence. The concealment of this vital fact from the Hon ble High Court is one that, we do hope, shall not be overlooked by the authorities, particularly the Central Board of Indirect Taxes Customs to whom the respondent herein ..... X X X X Extracts X X X X X X X X Extracts X X X X
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