- (1.) The Court: This appeal is directed against order dated 30th April, 2014 passed in WP No. 236 of 2014 (M/s. Shree Ganesh Forging Co. & Anr. v. Union of India & Ors.). The learned Single Judge had dismissed the Writ Petition on the opinion the application filed by the appellant-petitioner before the Tribunal was in substance an application to rectify the mistakes made in the order and not a simplicitor application for recalling the order of dismissal of an appeal by default. The facts relevant for the adjudication of this appeal are an Order-in-Original dated 19th December, 2008 was made in which it was recorded, inter alia, that: "It is further submitted that late Sri Maram Lakhmi Narayana was the proprietor of the firm. Since he is no more, penalty cannot be imposed in this case inasmuch as he was responsible for all the activities of his firm. In Black's Law Dictionary 6th edition, "proprietorship" has been defined as under:-- "A business which is owned by a person who has either the legal right and exclusive title, or dominion or the ownership of that business; a business usually unincorporated, owned and controlled exclusively by one person, such business is commonly designated as sole proprietorship." Since in the present case, the proprietor had died, no penalty is imposable on the firm inasmuch as in a proprietary firm, the proprietor and the proprietary firm is the same. After his demise, no penalty is imposable on him inasmuch as the firm has got no separate entity."
(2.) By that order the Commissioner Central Excise, Kolkata-II Commissionerate, determined the noticee had to pay an amount of Rs. 97,86,300/- as Central Excise Duty and penalty of similar amount was imposed under the Central Excise Act, 1944.
(3.) Incidentally the noticee being Shri Maram Lakshmi Narayan, the proprietor of the firm had expired on 5th March, 2008. Aggrieved by the said order the elder son of the noticee on 24th April, 2009 had preferred appeal before the CESTAT. As evident from the said appeal preferred the appellant described therein was M/s. Shree Ganesh Forging Co. In paragraph 3 of the statement of facts in the said appeal it was stated as under: "A show cause issued on 28-5-2007 to the appellant. But as the proprietor of the appellant firm had been seriously ill, the same could not be attended to. The appellant ultimately died on 5th March, 2008 of cancer. After the demise of Shri Maram Lakshmi Narayan, the proprietor of the firm, (the appellant), his elder son Sri Satya Murthy had taken over the firm. He made effort to retrieve records and documents for the material period and on the basis of such records and documents and whatsoever information could be recovered. A reply was prepared and submitted to the department on 9-9-2008." The said appeal was verified on 24th April, 2009 by the writ petitioner No. 2, M. Madhu Murthy. It was submitted by Mr. J.P. Khaitan, learned Senior Advocate, on instruction from his client present in Court, the writ petitioner No. 2 and not Sri Satya Murthy is the eldest son of the deceased noticee.;