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2012 (8) TMI 247

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..... the claim for dues of the department - An immovable property by itself cannot be sold unless the owner of the premises is defaulter and that too under a certificate as arrears of land revenue. That sale would be subject to the priority of claims - The Respondent No. 3 has therefore, clearly acted without jurisdiction in refusing to grant registration on the specious plea that EOU whose assets has been sold and purchased by the Petitioners has not applied for reregistration - in favour of assessee. - E/506 of 2012 - - - Dated:- 6-7-2012 - Mr. M.V. Ravindaran, J. For Appellant : Shri Ramesh Nair, Advocate For Respondent : Shri P.R. Meena, AR Per : Mr. M.V. Ravindaran; This early hearing application is filed for out of turn hearing of appeal No. E/506 of 2012. 2. After hearing the submissions made by both sides, I find that the issue needs urgent consideration and hence after allowing the out of turn hearing application, I take up the appeal itself for disposal. 3. The facts that arise for consideration are that the appellant has taken the premises at Plot No. 242/1,2,3, GIDC, Umbergaon from Mohammad Farooq Yunus, under a Lease Agreement for a period .....

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..... e Ministry of Commerce, vide letter dated 12.02.2004 (copy produced before me today) has clearly written to the jurisdictional Assistant Commissioner regarding the cancellation of the permission issued to M/s. Deto Stop India Limited. It is his submission that after 12.2.2004, Revenue has not taken any action. It is his submission that the original owner of the premises M/s. Anil Appliances has sold the property to the various owners and the current owner has the clear title of the said property from whom the appellant has got the lease of the property for setting up of 100% EOU activity. It is his submission that the judgment relied upon by the first appellate authority in the case of Manibhadra Processors 2005 (184) ELT 13 (Bom.) has been distinguished by the same High Court in the case of Tata Metaliks Limited -- 2009 9234) ELT 596 (Bom.). He produces the copy of the same. 6. Learned DR on the other hand would submit that the department is un-agreeable to grant registration and license to the appellant on the ground that earlier Export Oriented Unit registered in that premises had defaulted revenue to the amount of Rs. 7.90 Crores and there is no trace of the earlier Export .....

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..... t of Plot No. 242/1,2,3, GIDC, Umbergaon. 5.2 Further, since huge amount of Govt. Revenue of Rs. 7,90,34,381/- along with interest and penalty is still pending for recovery, it is natural that the Central Excise Registration issued under Rule 174 of Central Excise Rules, 1944/ Rule 9 of Central Excise Rules, 2002 License issued under Section 58 and 65 of the Customs Act, 1962 to M/s. Deto Stop India Limited cannot be cancelled till they pay the Govt. dues. Therefore, as correctly cited by the adjudicating authority in the case of M/s. Manibhadra Processors vs. Addl. Commissioner of Central Excise 2005 (184) ELT 13 (Bom.) wherein it has been held by the Hon'ble High Court as under: that if there be an earlier hold of the registration certificate who has not paid the outstanding excise duties and fails to surrender registration certificate with respect to the same factory premises, no other unit in the same premises can be registered under the Rules unless earlier registration is deregistered or cancelled or surrendered by such registrant and all excise dues are cleared. The appellant should not over look the substance of the judgment, considering the huge amount of gov .....

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..... 6. Registration of certain persons - Any prescribed person who is engaged in (a) the production of manufacture or any process of production or manufacture of any specified goods included in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) , or (b) the wholesale purchase or sale (whether on his own account or as a broker or commission agent) or the storage of any specified goods included in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986). In terms of the Act therefore, a person who is engaged in the occupation or manufacture or in the process of production of specified goods included in the First Schedule and Second Schedule to the Central Excise Tariff Act, 1985 or the wholesale Purchase or sale (whether on his own account or as a broker or commission agent) or the storage of any specified goods included in the First Schedule and the Second Schedule) the Central Excise Tariff Act, 1985 (5 of 1986), must get himself registered with the proper officer. The next relevant provision is Rule 9 of the Central Excise Rules which reads as under : Rule 9. Registration - (1) Every .....

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..... cancelled or surrendered by such registrant and all excise dues are cleared. On behalf of the Revenue, the learned counsel has relied on this judgment to contend that in the instant case, there is a subsisting registration in favour of Respondent No. 7, Usha Ispat and once there be registration in their favour, the Registrar was right in rejecting or returning the application for registration made by the Petitioner herein. Let us consider the ratio of the said judgment. On a reading of the said judgment, the following facts emerge. There was a company known as Ludhiana Woolen and Silk Mills Pvt. Ltd. who were owners of the premises. They firstly leased out the premises on rent to M/s. Swastik Dyeing and Printing Mills Limited who had obtained excise registration on 1-10-1996 and failed to clear their dues. Subsequent thereto, M/s. Ludhiana Woolen and Silk Mills Pvt. Ltd. leased out the very same premises to M/s. Jagruti Textile Processors who also defaulted in payment of dues and did not surrender the registration certificate. The application of Manibhadra Processors was refused on the ground that Jagruti Textiles have not paid their outstanding dues and failed to surrender their r .....

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..... is no jurisdiction to grant another person registration of the premises as in the case of a bona fide transferee for value or for that to the owner of the premises whose lessee has defaulted in payment of excise dues. Section 6 and Rule 9 and the notification contemplates that it is the person who must be registered. Neither Section 6 nor Rule 9 and the Notification is a provision for enforcing the claim for dues of the department. That is contained in different provisions. An immovable property by itself cannot be sold unless the owner of the premises is defaulter and that too under a certificate as arrears of land revenue. That sale would be subject to the priority of claims. In case of a lease hold property given for a particular period, there would be no question of sale of the property except the limited interest. In our opinion, the case of bona fide transferee was not in issue in the case of M/s. Manibhadra Processors (supra) or the instances we have cited above. The Respondent No. 3 has therefore, clearly acted without jurisdiction in refusing to grant registration on the specious plea that M/s. Usha Ispat whose assets has been sold and purchased by the Petitioners has not .....

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