TaxTMI 
TaxTMI 
2021 (12) TMI 619
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....abatement of the present appeal filed by the Revenue. It is mentioned that the sole proprietor of respondent, namely, Mohammed Sadeqain Naqvi has expired on 16 October, 2020. The Death Certificate as annexed with the Misc. Application is impressed upon. Ld. Counsel has also brought to the notice the Certificate of Registration in favour of the respondent showing it to be a Proprietorship firm of the deceased. Finally, relying upon the decision of this Tribunal Mumbai Bench in the case of Commissioner of Service Tax, Mumbai vs. Kalpesh Transport reported in 2016 (44) STR 669, ld. Counsel has prayed for the present appeal to be abated. 3. While rebutting these submissions, ld. D.R. has mentioned that the applicant/the widow of the deceased i....
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....er period as it may deem fit." 5. The word used herein is "shall" which makes it abundantly clear that if the sole proprietor of assessee in an appeal, irrespective the respondent therein, dies the appeal has mandatorily to abate except in a case where the legal representative of the deceased makes an application praying for continuance of the appeal. Apparently the said is not the circumstances for the present appeal. Rather the legal representative, the widow of the deceased sole proprietor, has prayed for the abatement of the present appeal. 6. The case law as relied upon by the appellant is also clear to hold that where the respondent being an individual dead person Revenue is not competent to file appeal against him. The proprietors....
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...." under Section 3(42) of General Clauses Act, 1897 was not applicable as it does not include legal representatives of deceased." Section 4 (3) (a) of Central Excise Act where the definition of person is there in accordance to said definition sole proprietorship is the sole person and with his death the appeal even of Revenue has to abate. Further is observed that Rule 22 prescribes for a period of limitation of 60 days from the date of the death. The sole Proprietor of respondent assessee expired on 15.10.2020. The impugned request of abatement for the first time was raised on 11.11.2021. However, Hon'ble Apex Court vide its order dated 23rd September, 2021 in Misc. Application No.665 of 2021 has ordered for exclusion of period w.e.f. 15 ....