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TMI Blog2015 (8) TMI 1044X X X X Extracts X X X X X X X X Extracts X X X X ..... ing authority to dccide whether or not the third respondent (hereinafter referred to as ''the auction purchaser'') is under a contractual duty or liability to pay the Customs dues, is erroneous. 2. The brief facts are that the second respondent M/s. Paam Pharmaceuticals (Delhi) Ltd. was granted letter of approval for manufacturing and export of pharmaceutical products. The Customs Department alleged evasion of Customs Duty and initiated proceedings which crystallized in an adjudication order dated 6-9-2002. The dues were to the tune of Rs. 1,77,91,061/-. Apparently, the said second respondent also defaulted upon its contractual liabilities with banks which led to recovery proceedings before the DRT. These resulted in a decree against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Department's claims. The DRAT allowed the auction purchaser's appeal, taking note of the prior attachment made by the Customs authorities - and also recording the finding that such attachment notice was never served in the first instance either on the auction purchaser or borrower, in the following terms : ''It has clearly been enunciated by the High Court that mere attachment of the property in the hands of original debtor would of no consequences considering the express provisions of section 35 of the SARFAESI Act. The Court has held that it will be open for the creditors irrespective of the attachment of the property to sell the same considering they are secured creditors. As per the Court, it overrides anything inconsist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 28-7-2005) to say that despite lack of primacy of Revenue over the claim towards secured creditor, it could nevertheless recover amounts from the subsequent or auction purchaser as the case may be in the present instance. Learned counsel also points out that in that decision, the Division Bench had relied upon the previous decision in Karam Chand Appliance Limited v. Bharat Carpet Ltd. - 1994 49 DRJ 637. 5. Learned counsel for the auction purchaser argues that the reliance placed by the Customs Department upon the attachment notice said to have been issued previous to the RO's order is of no consequence. He points to the findings recorded in page 54 of the paper book by the DRAT that such attachment notice was never served on the bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 (S.C.) a position which remains undisputed today, the Customs Department cannot assert indirectly what it could not achieve in the first instance. To recapitulate, the Customs Department sought to argue before the RO that it had an overriding claim to realize its dues from the immovable property. That argument failed. Having suffered such an order, it cannot now in the absence of a statutory provision, directing a charge or an encumbrance in its favour, fall back merely upon a representation held out in the auction notice. 8. As far as the reliance on Singapore Tong (supra) is concerned, the provision under Section 76F no longer exists. It did not exist even on the date of the auction. That apart, even Section 76F facially applies o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vt. Ltd. - 2006 (1) SCC 615 is relevant. It was held in that case that unless there is a positive indication in the law which attaches the liability upon the purchaser of the immovable property, there cannot be a presumption that the amounts can be recovered from him. In the present instance, there is no indication in the Customs Act that the property of a defaulter which is put to auction can still be claimed by the Customs Department after title passes to the auction purchaser once it is held that it has no primacy for its dues.
10. For the above reasons, we are of the opinion that there is no merit in the proceedings. The writ petition is consequently dismissed along with the pending application. X X X X Extracts X X X X X X X X Extracts X X X X
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