YOGESH KUMAR GARG Vs. UNION OF INDIA

JUDGEMENT

(1.) PETITIONERS are the partners of dissolved firm M/s. Gopal Industries Morena. The firm has dissolved on account of death of one of the partner and intimation of dissolution of partnership was communicated to respondents. Annexure P/5 is the affidavit of one of the partner, Yogesh Kumar Garg filed by the respondents. On account of certain recoveries of excise duty against the said firm notices were sent in the name of firm, which were received by one Girjesh Rai, ex-employee of the M/s. Gopal Industries. He accepted the notices and filed reply on behalf of the partners. But, there is nothing on record to demonstrate that said Girjesh Rai was authorised by all the partners to appear on their behalf in the Central Excise matter before Commissioner, Central Excise and Customs. Document R-6 filed by the respondents with their return shows that Girjesh Rai was authorised to represent the firm in all matters related to excise. His authorisation automatically came to an end after dissolution of firm. As such Girjesh Rai was not authorised and was not competent to appear on behalf of all the partners, until and unless all the partners have issued power of attorney in favour of said Girjesh Rai.

(2.) THE order imposing penalty has been passed by the Commissioner, Central Excise and Customs, treating the petitioners served and Girjesh Rai has represented the partners imposed excise duty amounting Rs. 46,53,866/- on the firm and penalty of similar amount upon the noticee No. 1 and noticee No. 1 was held liable to pay interest equal to the amount of the recovery. Penalty of Rs. 10,00,000/- was imposed upon the noticee No. 2, Yogesh Garg and penalty of Rs. 50,000/- each was imposed upon noticee No. 4, Smt. Sarla Devi Garg and Smt. Sharda Devi Garg, noticee No. 5. Penalty of Rs. 1,00,000/- was imposed upon Awdesh Kumar Saxena, noticee No. 6 and penalty of Rs. 50,000/- was imposed upon noticee No. 7 Saurabh Garg.

(3.) SINCE none of the petitioner were heard before ordering recovery and imposing penalty, the order Annexure P/7 passed by Commissioner, Central Excise and Customs, Indore on 6-5-2000 is quashed with a direction to the petitioners to appear and file their reply to show cause notice on 24-3-2003 before the Commissioner, Central Excise and Customs and Commissioner after considering their reply shall afford an opportunity of hearing to the petitioners and pass final order. It is made clear that, in case petitioners in person or through counsel fail to appear on the said date the Commissioner shall be free to pass order by proceeding ex parte against the petitioner.