S.A. KAREEM Vs. COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) WHEN the case was called, Id. Counsel, Smt. L. Mythili, submits that the appellant is no more and he has passed away. She submits that the Mumbai Bench in a similar matter on the death of the sole proprietor have followed the ratio of the judgment rendered in the case of D. Matai v. CCE, Mumbai as reported in 2000 (126) E.L.T. 1264 (Tribunal) - 2000 (39) RLT 1058, and has held that in such a circumstance action for recovery of demand and penalty is not recoverable and the same has been set aside.

(2.) DR Shri C. Mani submits that the law clearly lays down for recovery of the demands from the legal heirs who have succeeded to the estate of the deceased and therefore the order passed in that judgment would not be correct. However, he submits that individual penalty on the present appellant may not be recoverable. He submits that in terms of Rule 22 of the CEGAT (Procedure) Rules, legal heirs who are not brought on record, then in such a circumstance, the Tribunal can dismiss the appeal as 'abate' which is the correct procedure to be followed.

(3.) ON a careful consideration, we notice that the legal heirs have not been brought on record to contest the appeal, despite notices have been issued to the address of the appellant which has come back undelivered with postal endorsement "deceased". Counsel also submits that she is not able to contact the legal heirs and legal representatives. Rule 22 of CEGAT (Procedure) Rules states that an appeal abates when legal heirs are not brought on record. When the appellant dies or is adjudicated as an insolvent or in the case of a company is being wound up, it is clearly laid down that such an appeal 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 to the extent may be, provided that application shall be made within a period of 60 days of the occurrence of the event. Counsel is not aware of the date of death of the appellant. Therefore, the oral application made by the Counsel to set aside the impugned order cannot be accepted in the light of the provisions of Rule 22 of CEGAT (Procedure) Rules. There is no application from the legal representatives and successor -in -interest. The date of death of the appellant is also not known. The present oral application has not been filed within time. In that view of the matter, the appeal is dismissed as 'abates' in terms of Rule 22 of CEGAT (Procedure) Rules.