IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.1 of 2009 THE UNION OF INDIA & ORS -----Petitioners. Versus NIRMALA MITRA ---- Respondent. ----------- 4 20.05.2009 Heard Mr. Rakesh Kumar Singh, learned counsel for the petitioners, and Mr. Vikash Jain for the respondent. Learned counsel for the petitioners presses I.A.No. 28/09, which is in the nature of a substitution application, and I.A.No. 29/2009, is in the nature of a limitation application. The appellant of Tax Case no.12/2002 has filed this M.J.C. application for recall of the order dated 25.11.2008, whereby the appeal was held to have abated on account of non- substitution of the heir(s) of the sole respondent. We have perused the materials on record and considered the submissions of the learned counsel for the parties. We are of the view that an order to the effect that the lis has abated can be set aside in appeal, because it is disposal on merits, and not in default or non-prosecution. We have examined the main matter also. The Tax Case is directed against the order dated 19.06.2001, passed by the Customs Excise and Gold ( control) Appellate Tribunal Kolkata, whereby it has been held that the original proceedee had purchased the gold bars out of the funds he had defalcated for which he was subjected to a criminal case. The Tribunal, being the last forum of facts, has held that the department has not been able to 2 prove that the gold bars were of foreign origin. On the contrary, the Tribunal has held that the proceedee had purchased it from the Reserve Bank of India out of the defalcated fund. Furthermore, confiscation had taken place way back on 04.11.1950. The original proceedee, and thereafter the widow, the substituted heir, are dead giving rise to need for second round of substitution. We are unwilling to proceed further with this matter. It is accordingly rejected along with both the interlocutory applications (I.A.No.28/2009 and I.A.No. 29/2009.) Sym/ ( S.K.Katriar, J.) (Kishore K. Mandal, J.)