TaxTMI 
TaxTMI 
TaxTMI 
2025 (10) TMI 15
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....ut had diverted the same to the local market and no export was undertaken on the duty-free goods imported under the Advance Licence. After due process of law, the Ld. Commissioner of Customs confirmed the proposals in the Show Cause Notice and also appropriated an amount of Rs.7 lakhs voluntarily paid towards the duty liability of Rs.56,94,794/-. Aggrieved by the said order dated 6.10.2009, the appellant came before this Tribunal. However, in due course the appeal came to rejected for non-prosecution. Subsequently this tribunal accepted the appellants plea and restored the appeal vide Misc Order no. 40398 of 2018 dated 19.04.2018 on payment of cost of Rs.50,000/. 3. Shri B. Satish Sundar, Ld. Counsel appeared for the appellant and Smt. O.M. Reena, Ld. Authorized Representative appeared for the respondent. 3.1 The Ld. Counsel for the appellant submitted that the impugned order was primarily challenged before this tribunal on the ground that officers of DGCEI do not have the authority to demand differential duty in terms of section 28(1) of the Customs Act, 1962. They are not 'proper officers' and do not have territorial jurisdiction to take action despite their being clothed with ....
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....ngle. With the death of the 2nd partner and survival of only one partner namely Shri Ponsekar, the firm could at best only be treated as a proprietary firm in his hands and not as a partnership firm. The death of the surviving partner in year 2024 (treating him to be the proprietor) extinguishes the adjudicatory liability on the appellant firm. Further none of the partners were termed as defaulter in terms of the Customs (Attachment of property of defaulters for recovery of government dues) Rules, 1995 nor a certificate issued to them by the Assistant/Deputy Commissioner of Customs in terms of sec. 142 or the aforesaid Rules. Therefore, in the absence of such action, the question of invoking the Rules or Sec. 142 of the Customs Act does not arise qua the said firm or the authorised signatory namely Ponsekar. In any event, when an act requires a particular thing to be done in a particular manner, it has to be done in that manner alone. Further in the absence of any machinery provision under sec. 142 or the aforesaid rules to demand duty in such a situation, there can be no recovery of the adjudged dues from the legal representatives of the deceased partner. Hence the Ld. Counsel sta....
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.... by the firm or its partners, then the partners will be jointly liable for it. However, its identity can undergo a change with a change in partners, subject to the terms of the contract. A firm without a reference to its partners has no juristic identity in law and therefore a partnership firm alone cannot be proceeded against. 5. Earlier a three Judge Bench of the Hon'ble Supreme Court in the case of Commissioner Of Income-Tax, Nagpur Vs Seth Govindram Sugar Mills Ltd [AIR 1966 SUPREME COURT 24 / 1965 3 SCR 488 / 1965 57 ITR 510], had examined the case of dissolution of a partnership firm having two members and more than two members. It held: "Partnership, under Section 4 of the Partnership Act, is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Section 5 of the said Act says that the relation of partnership arises from contract and not from status. The fundamental principle of partnership, therefore, is that the relation of partnership arises out of contract and not out of status. To accept the argument of the learned counsel is to, negative the basic principle of law of partnership. Section 42 ca....
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....ter called the Partner of the THIRD PART, is as follows- WHEREAS the above mentioned Parties were carrying on business in partnership under the name and style of "RAJA METALS CORPORATION at No.239, Mint Street, Madras 600 003, evidenced by a Deed of Partner-ship dated 31st March 1975; AND WHEREAS the above parties decided to alter and amend certain clauses in the partnership in view of the present amendment of the Income-tax Act. AND WHEREAS the above Parties generally agreed on all the terms and conditions now desirous of reducing in writing in this Deed of Partnership governing the future relationship of the partnership business ***** **** ***** (4) Duration: The partnership shall be carried on mutually at the WILL of the partners. ***** **** ***** (12) Notwithstanding anything stated or provided herein the parties shall have full power and discretion to modify, alter or vary the terms and conditions of this Deed in any manner whatsoever they think fit, by mutual consent, which shall be reduced in writing and shall be signed by all the parties and thereupon the said writing shall become an appendage and part of this deed. (13) Wherever no specific provision is made ....
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....with the jurisdiction, by an assignment of functions under Section 5, to conduct assessment under Section 17 in respect of such duty. Section 97 of the Finance Act, 2022 inter alia provides for validation of certain actions. The said section is reproduced below: 97. Notwithstanding anything contained in any judgment, decree or order of any court, tribunal, or other authority, or in the provisions of the Customs Act, 1962 (52 of 1962) (hereinafter referred to as the Customs Act),-- (i) anything done or any duty performed or any action taken or purported to have been taken or done under Chapters V, VAA, VI, IX, X, XI, XII, XIIA, XIII, XIV, XVI and XVII of the Customs Act, as it stood prior to its amendment by this Act, shall be deemed to have been validly done or performed or taken; (ii) any notification issued under the Customs Act for appointing or assigning functions to any officer shall be deemed to have been validly issued for all purposes, including for the purposes of section 6; (iii) for the purposes of this section, sections 2, 3 and 5 of the Customs Act, as amended by this Act, shall have and shall always be deemed to have effect for all purposes as if the provision....
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....sions under the Central Excise Act. Similarly, we find that though Section 142 of the Customs Act, provides for the method by which the Department may recover dues from an assessee, there is no enabling provision therein for the continuance of recovery in the hands of his legal representatives. The Customs Act 1962 does not make a provision for bringing on record the legal representative of the assessee or the procedure to be followed, after his death. However the lack of a procedure merely bars a remedy but does not extinguish the liability. The Hon'ble Madras High Court in a Customs matter in the case of S. Hidayathullah @ Mannady Bharakath (Died) and Ors Vs The Commissioner of Customs, Airport Customs House, Chennai [2025 (5) TMI 590 - MADRAS HIGH COURT / 2025:MHC:1144], referred to the judgment in the case of Shabina Abraham (supra) and held; 43. To put it alternatively, and as the Supreme Court has held in Shabina Abraham's case, the scheme of the Customs Act has consciously kept legal heirs away from the rigour of answering to liabilities under that Act. With this, the position stands settled that a demand under a fiscal statute, be it of tax, duty, interest or penalty, can....