AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2022 (7) TMI 140
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....appeal, we are of the view that the delay in preferring the instant appeal should be condoned and the same is accordingly condoned. GA/1/2021 stands allowed and the delay in preferring the appeal stands condoned. GA/4/2021 This application has been filed by the revenue to condone the delay of 1013 days in filing substitution application In GA/5/2022. The averments set out in the affidavit filed in support of the application that the delay is not attributable to the department as the department received information about the legal heirs of the deceased of the second respondent only after the same was communicated by the learned Advocate appearing for the assessee. Therefore, we are satisfied that sufficient cause has been shown for condon....
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....s. Aishwarya Rajyashree with Ms. Banani Bhattacharyya for the revenue and Mr. Somak Basu, learned Advocate appearing for the respondent company. We need not labour much to decide the issue of substitution arising in the instant case on account of the decision of the Hon'ble Supreme Court in SHABINA ABRAHAM AND OTHERS Versus COLLECTOR OF CENTRAL EXCISE AND CUSTOMS; (2015) 10 Supreme Court Cases 770. In the said case one sole proprietor of a Tyre and Rubber Company limited in or about October 1985, the proprietor concerned stopped manufacturing activities and thereafter by show cause notice dated 12th June, 1987, it was held that assessee has manufactured and cleared tread rubber from the factory by suppressing the fact of such production wi....
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....s reported in 2003 SCC Online Kerala 193. Challenging the said order the legal heirs of the deceased assessee preferred appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court after noting the relevant provision of the Central Excise and Salt Act agreed with the assessee that there is no separate machinery provided under the Central Excise and Salt Act to proceed against the dead person when it comes to assessing him to tax under the Act. The Court also took note of the position under the Income Tax Act, 1922, which was the same until Section 24B was introduced by Income Tax (2nd amendment) Act, 1993. The Hon'ble Supreme Court proceeded to take note of the definition of assessee as contained in Section 4(3)(a) of the Cent....
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....revenue on Section 3(42) of the General Clauses Act, 1897 which defines 'person' and the argument placed on the said provision was rejected by holding that the definition does not include legal representatives of persons, who are since deceased. Further the Hon'ble Supreme Court noted the Section 6 of the Central Excise Act which prescribes a procedure for the registration of certain person who are engaged in the process of production or manufacture of any specified goods mentioned in the schedule to the said Act does not throw any light on the question before the Hon'ble Supreme Court as it says nothing about how a dead person's assessment is to continue after his death in respect of excise duty that may have escaped assessment. The Hon'b....
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....ss was over and an order in original was passed by the Commissioner of Central Excise, CGST & Central Excise, Howrah Commissionerate on 28th October, 2017. The assessee, namely, the company and the deceased second respondent filed an appeal before the Tribunal which was allowed by the impugned order. The revenue now seeks to challenge the order passed by the tribunal. Thus, the appeal being the continuation of the proceedings, the law as interpreted by the Hon'ble Supreme Court in Shabina Abraham (supra) would squarely apply to the instant case on hand. Mr. Bhattacharya, learned counsel appearing for the appellant, places reliance upon a decision of the Division Bench of the High Court at Patna in the case of Bhagwan Banka & Ors. Vs. R.B. ....