E P Kunhanandan Nair @Hash Commissioner Of Central Excise And Central Tax, Mangalore Commissionerate

The miscellaneous application has been filed by Mr. P. Suraj, residing at No.3-6-42, Sunshine, Kallare, Puttur, Kasaba, Darbe, Puttur â€" 574202,

Dakshina Kannada, Karnataka, is the son of late Shri E.P. Kunhanandan nair, who was the appellant and filed the present appeal bearing number

ST/21796/2018 praying that the present appeal stand abated in terms of Rule 22 of the Customs, Excise and Service Tax Appellate Tribunal

(Procedure) Rules, 1982. The applicant has further averred in the application that the appellant was a PWD contractor and was engaged in rendering

services of construction of buildings since 1962 and had always maintained rendering quality services to his clients over the years. A showcause

notice dt. 12/02/2016 was issued which was contested by his father and the adjudicating authority after following the due process has confirmed the

demand of service tax, interest and penalty. The deceased appellant filed the appeal before the Commissioner (Appeals) and the Commissioner

(Appeals) has partly allowed the appeal. thereafter the deceased filed the present appeal aggrieved by the order to the extent that the Commissioner

(Appeals) confirmed the demand against the appellant. He has also stated that during the pendency of the appeal, his father who was the appellant

has died on 09/05/2019 and the business of the appellant has not devolved upon any of his surviving heirs including the applicant. The applicant has

also annexed the copy of the death certificate showing that the appellant has dies and has also filed an affidavit along with the application to that

effect.

We have heard both sides and perused the material on record.

Learned counsel for the applicant submitted that the appellant has died on 09/05/2019 during the pendency of the present appeal and in terms of

Rule 22 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982, the present appeal must necessarily abate since no

application filed by or against the legal heirs to contest the said matter. Learned counsel has relied upon the judgment of the Hon’ble Supreme

Court in the case of Shabina Abraham Vs. CCE 2015(322) ELT 372 (SC)].

On the other hand, the learned AR has accepted the death of the appellant during the pendency of the proceedings.

After considering the submissions of both the parties and perusal of the material on record, we find that as per the death certificate produced on

record, the appellant has died on 09/05/2019 when the appeal was pending. We also find that the appellant was a proprietor and has died during the

pendency of the proceedings. We also find that in view of Rule 22 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules,

1982, on the death of a proprietor, the proceedings shall abate. Rule 22 is reproduced herein below:-

RULE 22. Continuance of proceedings after death or adjudication as an In-solvent of a party to the appeal or application:-

Where in any proceedings the appellant or applicant or a respondent dies or is adjudicated as an insolvent or in the case of a company, is

being wound up, the appeal or application shall abate, unless an application is made for continuance of such proceedings by or against the

successor-in-interest, the executor, administrator, receiver, liquidator or other legal representative of the appellant or applicant or

respondent, as the case may be: … … …..

We have gone through the decision of the Hon’ble Supreme Court in the case of Shabina Abraham wherein it has been held that no

proceedings can be initiated against a death person as it amounts to violation of natural justice inasmuch as the death person, who is proceeded

against, is not live to defend himself. Further as per Rule 22 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982, the

appeal shall abate on the death of the appellant unless an application is made for continuation of such proceedings by or against the successor in

interest, executor, administrator, receiver, liquidator or other legal representatives of the appellant or applicant or respondent, as the case may be.

Further we find that in the present case, the business of the appellant has not devolved upon any of his surviving heirs including the applicant, as per

the application filed by the applicant. Further we find that the decision of the Hon’ble Apex Court cited supra is applicable in the facts and

circumstances of the case. Therefore, by following the ratio of the said decision and Rule 22 of the Customs, Excise and Service Tax Appellate

Tribunal (Procedure) Rules, 1982, we allow the application of the applicant and order that the present appeal stands abated. Accordingly, the appeal is

disposed of.

(Operative portion of the Order was pronounced in Open Court on 22/01/2021)