Harish Tandon, J. - (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. 3 By referring Rule 41 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules 1982, it is sought to be contended that the tribunal may make such orders or give such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent the abuse of its process or to secure the ends of justice. Thus it is submitted that if the tribunal has a power to dismiss the appeal, it has further power to recall the order and restore the appeal, by placing reliance upon a judgment of the Supreme Court rendered in case of J.K. Synthetics Ltd. v. Collector of Central Excise : 1996 (86) ELT 472 (SC) and a division bench judgment of this Court in case of ITO v. Murlidhar Sarda : [1975] 99 ITR 485 (Cal.). It is lastly submitted that the tribunal though recorded that the appeal has abated but in fact, the same was dismissed and, therefore, an application for recalling the said order cannot be said to be barred under Section 35C(2) of the said Act. 4 The respondent, however, submits that the tribunal recorded the abatement of the appeal on the basis of an application filed by the petitioner wherein it is specifically averred that the appeal has abated and, therefore, the contention of the petitioner that the said order shall be treated to be an order for dismissal of the appeal is afterthought and contrary to the record. It is further submitted that the tribunal have treated the application filed by the petitioner to be an application to rectifying the mistake apparent on the said order and rightly rejected the same having taken out beyond the prescribed period or limitation provided under Section 35C(2) of the said Act. It is strenuously submitted that the petitioner cannot change the stand at the different stages of the proceedings after having taken specific stand that the appeal should abate by filing an application. Lastly it is submitted that the order passed by the Tribunal is amenable to be challenged before this Court by filing a statutory appeal and the writ court should not interfere. 5 Having considered the respective submissions, it is no doubt true that the appeal filed by the petitioner no. 2 before the tribunal stood dismissed on the basis of an application filed in this regard. The Four Corners of the applications would reveal that a specific stand was taken by the petitioner no. 2 that the appeal is incompetent having abated on the death of the proprietor. The tribunal recorded the abatement by relying upon the statement made by the petitioner no. 2 in the said application. It is indeed true that the appeal was taken out by the petitioner no. 2 and not by the deceased proprietor and, therefore, the recording of an abatement even on the basis of the application taken out in this regard is a mistake committed by the tribunal. The petitioner was advised that the demand upon a deceased proprietor would perish automatically after the constitution of the partnership firm which has a separate legal entity. In fact, on the aforesaid plea, the earlier writ petition was filed before this Court which stood dismissed with a categorical finding that mere conversion of the proprietorship concern into a partnership firm does not evaporate the liability of the erstwhile concern. The petitioner tried to take shelter under a mistaken advice and also deriving a clue from the correction made in an order passed in an earlier writ petition. 6 It admits no quarrel to the proposition of law as laid down by the Supreme Court in case of J.K. Synthetics Ltd. (supra) that the tribunal is bestowed with the power to recall its order under Rule 41 of the CEGAT Procedure Rules. In the said report, the tribunal proceeded to decide the matter ex parte and thereafter an application for setting aside the ex parte order was taken out. The tribunal refused to entertain the said application on the plea that the power to set aside the ex parte order is not provided either in the statute nor in the connected Rules. Overruling the observation of the Tribunal, the Apex Court held: 5. Rule 20 of the CEGAT (Procedure) Rules deals with cases where the appellant has defaulted. Rule 21 empowers CEGAT to hear appeals ex parte. The fact that Rule 21 does not expressly state that an order on an appeal heard and disposed of ex parte can be set aside on sufficient cause for the absence of the respondent being shown does not mean that CEGAT has no power to do so. Rule 41 gives CEGAT wide powers to make such orders or give such directions as might be necessary or expedient to give effect or in relation to its orders or to prevent abuse of its process or, most importantly, to secure the ends of justice. 6. If, in a given case, it is established that the respondent was unable to appear before it for no fault of his own, the ends of justice would clearly require that the ex parte order against him should be set aside. Not to do so on the ground of lack of power would be manifest injustice. Quite apart from the inherent power that every tribunal and court constituted to do justice has in this respect, CEGAT is clothed with express power under Rule 41 to make such order as is necessary to secure the ends of justice. CEGAT has, therefore, the power to set aside an order passed ex parte against the respondent before it if it is found that the respondent had, for sufficient cause, been unable to appear. 7. It is for CEGAT to consider in every such case whether the respondent who applies for recall of the ex parte order against him had sufficient cause for remaining absent when it was passed and, if it is established to the satisfaction of CEGAT that there was sufficient cause, CEGAT must set aside the ex parte order, restore the appeal to its file and hear it afresh on merits. 7. The division bench of this Court in case of Murlidhar Sarda (supra) opined in the identical line in following words: ** ** ** His Lordship also held that it is a power incidental to or ancillary to the jurisdiction given to the Tribunal and that jurisdiction is inherent power in an appropriate case to give a party an opportunity of rehearing after the appeal has been disposed of in the absence of the party. ** ** ** Mr. Pal, in his fairness, did not contend before us that the learned trial Judge, Sabya -sachi Mukharji J; has committed any error in holding that the Appellate Tribunal had inherent jurisdiction, though not by any express provisions, yet ancillary to the jurisdiction given by section 254 of the Income -tax Act to restore and rehear an appeal disposed of on the merits in the absence of any party who has been prevented by reasonable and sufficient cause from appearing before the Tribunal at the date of hearing. We may only add that we fully agree with the view of the learned trial Judge and that for the reasons of the provisions of sub -section (1) of section 254 of the Act itself the opportunity of being heard, spoken of in that provision of the Act, is essentially part of the jurisdiction that the Tribunal has been given by the statute; when adequate and reasonable grounds for omission to appear at the hearing are made out to the satisfaction of the Tribunal, it is only a question before the Tribunal as to the adequacy of that opportunity of being heard which sub -section (1) of section 254 enjoins to be given before the Tribunal is enabled to pass orders in the appeal. 8. I am not oblivion of the proposition of law that the Court or the Tribunal should not swayed by the nomenclature of the application but should look into the substance thereof. Paragraph 26 of the said application would depict that the tribunal dismissed the appeal as abated on an application made by the petitioner no. 2. It would be relevant to quote Paragraph 26 which reads thus: 26. In the circumstances, it is submitted that it was a grave mistake committed by the applicant herein, based upon incorrect legal advice, so to have made an application which induced this Hon'ble Tribunal to pass the order dated 25th April, 2011 and thus dismiss the appeal and stay petition on the ground that the same have abated. 9. Paragraph 27 of the said application proceeds on the basis that there cannot be an abatement of the appeal when the same is filed by the petitioner no. 2 who is still alive. 10. The meaningful reading of the said application, it is manifest that the petitioner tried to contend before the tribunal that the recording of an abatement is mistake having committed on the legal advice. 11. Section 35C(2) of the said Act provides the period of six months from the date of the order for rectifying the mistake in the order. It would be relevant to quote Section 35C(2) which reads thus: 35C. Orders of Appellate Tribunal -(2) The Appellate Tribunal may, at any time within six months from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub -section (1) and shall make such amendments if the mistake is brought to its notice by the Commissioner of Central Excise or the other party to the appeal: Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the other party, shall not be made under this sub -section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard. 12. The aforesaid provision does not provide for condonation of delay in making out an application beyond the stipulated period of six months from the date of the order. When the statute has provided the maximum period of limitation, the tribunal cannot pass an order condoning the delay of more than the prescribed period in absence of any express power to do so. Equally the Court cannot direct the authority to act contrary to the law. 13. I am of the opinion that the application filed by the petitioner before the tribunal is, in substance, an application to rectifying the mistakes made in the order and not a simplicitor application for recalling the order of dismissal of an appeal by default. This Court, therefore, does not find that the order of the tribunal suffers from infirmity and/or illegality. The writ petition is devoid of merit and is thus dismissed. However, there shall be no order as to costs.;