SHREE GANESH FORGING COMPANY Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner has assailed in this writ petition the notice of demand dated 20-12-2013 by the Assistant Commissioner of Central Excise, Howrah, North Division-II, 5, Clive Row, Kolkata under Section 142(1)(c)(ii) of the Customs Act, 1962 read with Rule 4 of the Customs (Attachment of Property of Defaulters for Recovery of Government Dues) Rules, 1995. A confusion is tried to be created in the name of the firm upon whom the aforesaid notice is issued. It is an admitted position that one Maram Laksmi Narayana was carrying on the business, which attracts the excise duty, as proprietor in the trade name and style of "Shree Ganesh Forging Co." The said proprietor defaulted in payment of excise duty and a proceeding was initiated. Subsequently, the proprietor died and according to the department the fact of the death of the said proprietor was not communicated. The proceeding was culminated into an order. It further, came out that one of the sons preferred an appeal against the said order before the Tribunal but subsequently withdrew the same. According to the petitioner, after the death of the proprietor the assessee number was surrendered and, therefore, the said proprietorship concern was no longer in existence. Thereafter, all the sons constituted a partnership firm by executing on a deed of partnership and carrying on the business which also attracts the excise duty in the trade name and style of "Shree Ganesh Forging Co." having separate assessee number. The petitioner says that being a different legal entity, the notice issued against, the demand of the erstwhile proprietorship concerned is bad and, therefore is not binding upon the partnership firm.

(2.) Mr. Chakraborty, learned Advocate for the petitioner heavily relies upon a judgment of the Supreme Court in the case of the State of Punjab v. M/s. Jillundur Vegetables Syndicate, 1966 AIR(SC) 1295 to contend that the assessment proceeding cannot continue against the dissolved firm. He further, relies upon a judgment of the Karnataka High Court in the case of Commissioner of Central Excise, Bangalore-I v. Press Fab. Precision Components (P.) Ltd, 2007 207 ELT 207 in support of his contention that proviso to Section 142(1)(C)(ii) of the Customs Act cannot be invoked against the successor prior to the introduction of the said proviso which came into effect on and from 10-9-2004.

(3.) Mr. Saraf, learned Advocate for the department brought to my notice that the Central Excise registration certificate annexed to this writ petition where-from it appears that after the death of the father one of the sons continued the business as a proprietor thereof which was later on converted into a partnership firm upon execution of a deed of partnership. This Court, therefore, does not find any strength on the submission of the petitioner that both the proprietorship concern and the partnership firm are two separate distinct entity rather the documents annexed to this writ petitioner suggests that the said proprietorship firm continues and later on converted into a partnership firm.