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2015 (9) TMI 576 - AT - Central ExciseRecovery of excise duty - Liability of successor - Purchase of immovable property assets - Held that:- In the present case it is not under dispute that firstly the duty is recoverable from M/s. Sumit Rerolling Mills Pvt. Ltd but the assets was purchased by the appellant, not from M/s. Sumit Rerolling Mills Pvt. Ltd but from Zia Iron Stores. As per the provisions, if the asset is sold by M/s. Sumit Rerolling Mills Pvt. Ltd to the appellant then only proviso to provisions of Section 11 will attract. The asset was neither sold by M/s. Sumit Rerolling Mills Pvt. Ltd, nor it was purchased by appellant from M/s. Sumit Rerolling Mills Pvt. Ltd, for this reason the proviso to Section 11 shall not attract. I also observed that in the whole chain of transaction of the immovable assets M/s. Sumit Rerolling Mills Pvt. Ltd has no locus standi because the assets was not sold by M/s. Sumit Rerolling Mills Pvt. Ltd whereas it was first acquired by the bank, who under auction sold the asset not to the appellant but to the Zia Iron Stores and subsequently the appellant has purchased the assets from M/s. Zia Iron Stores. In this transaction, neither M/s. Sumit Rerolling Mills Pvt. Ltd is the predecessor nor the appellant is successor. It is undisputed fact that firstly appellant has not taken over the business or trade which was being run by M/s. Sumit Rerolling Mills Pvt. Ltd. For this reason also proviso Section to 11 is not applicable. I am in agreement with the submission of the Ld. Counsel that in view of the Krishna Lifestyle Technologies Ltd (2008 (2) TMI 2 - HIGH COURT, BOMBAY) case the recovery from the successor can only be made when the business or trade is transferred either in whole or in part from the predecessor to the successor. - Immovable assets were first sold in auction by the bank to Zia Iron Stores and thereafter the appellant has purchased the property from Zia Iron Stores. It has been held in the numerous judgment that if any property is sold under auction buyer cannot be held liable for payment of the arrears of the previous owner of the property. Therefore the deed and agreement and terms and conditions thereof have no relevance in the present case. Moreover even if any such clause exist the same cannot be used for making recovery. For recovery of arrears of the M/s. Sumit Rerolling Mills Pvt. Ltd if at all can be made in terms of proviso to Section 11 which under the present set of the facts does not apply. On going through the under taking given by the appellant while obtaining registration regarding the payment of arrears, I find that the appellant has given such under taking without prejudice to the legal rights of the appellant therefore in my considered view though the under taking is given by the appellant, the same is not sufficient for enforcing the recovery of arrears as the appellant is not legally liable for payment of arrears of M/s. Sumit Rerolling Mills Pvt. Ltd. - appellant is not liable for payment of dues which is pending against M/s. Sumit Rerolling Mills Pvt. Ltd. therefore impugned order is set aside - Decided in favour of assessee.
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