SHREE GANESH FORGING CO Vs. UNION OF INDIA

JUDGEMENT

(1.) IN the second round of litigation before this Court, the writ petitioner has assailed the order dated 4th March, 2014 passed by the Customs, Excise and Service Tax Appellate Tribunal, Kolkata by which an application for restoration of the appeal is dismissed on the ground of limitation provided under Section 35C(2) of the Central Excise Act, 1944. The undisputed facts are that one Maram Lakshmi Narayana was carrying out the business as proprietor in the trade name and style of "Shree Ganesh Forging Company" and committed default in payment of excise duty. A proceeding was initiated against the proprietor who subsequently died in the midst of the proceedings. According to the department, the factum of death of the said proprietor was not communicated and the authority proceeded to decide the matter imposing the duty and the penalty upon the said proprietor. The petitioner No. 2 being the one of the sons of the said deceased preferred in appeal before the tribunal and subsequently made an application for dismissal of the said proceeding on the ground that the appeal has abated. Later on, all the sons of the deceased proprietor formed a partnership firm in the same trade name and style and obtained a separate assessee number. Challenging a notice of demand, a writ petition (W.P. No. 35 of 2014) was filed before this Court wherein a plea was sought to be taken that the said partnership firm is distinct and separate from the erstwhile proprietorship concern and, therefore, the authorities cannot impose the liability of the proprietorship concern upon the newly constituted partnership firm. The Court dismissed the writ petition on a categorical finding that the liability accrued to a proprietorship concern cannot be said to have evaporated when the entire assets belonging to it came to be vested to a partnership firm. In the said judgment dated 21st January, 2014 rendered in W.P. 35 of 2014, it was recorded that the appeal filed by one of the sons i.e. petitioner no. 2 herein have abated which was subsequently corrected by insertion of the word 'dismissed'. Taking a clue from the aforesaid correction, the petitioner approached the Tribunal and filed an application for recalling the said order by which the appeal before the Tribunal was dismissed as abated. The Tribunal rejected the said application on the ground of limitation by treating the same to have been filed under Section 35C(2) of the Central Excise Act, 1944.

(2.) WHILE assailing the said order, the learned Advocate appearing for the petitioner submits that the Tribunal misconstrued the purport and/or tenet of the application to be an application for rectification of the mistake apparent on the record though the application was filed for recalling the order and restoration of the appeal. He further submits that the abatement would arise when a person appealing died and no application for substitution is taken out within the prescribed period. According to him, the appeal is filed by the petitioner no. 2 who is still alive and the tribunal, in fact, dismissed the matter on an application taken out in this regard.