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DRM TECHNOLOGY PVT LTD - THROUGH AUTHORISED SIGNATORY AND 1 Versus UNION OF INDIA AND 1

2016 (1) TMI 1008 - GUJARAT HIGH COURT

Central excise registration cancelled - Purchaser of land - Held that:- Merely because the defaulter unit, though it had ceased to carry on business on the premises in question, had failed to apply for de-registration, the same should not, in any manner, come in the way of the petitioners in obtaining central excise registration in respect of the premises in question. The stand adopted by the respondent authority that in respect of the same premises, two persons cannot be registered being contra .....

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from the angle of any other provisions of the Central Excise law. Petition is allowed and disposed of accordingly - SPECIAL CIVIL APPLICATION NO. 20970 of 2015 - Dated:- 7-1-2016 - MR. AKIL KURESHI AND MR. MOHINDER PAL, JJ. FOR THE PETITONER : MR.MANAN V BHATT, ADVOCATE FOR THE RESPONDENT : MR YN RAVANI, ADVOCATE ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. Leave to amend. 2. Heard learned advocates for the parties for final disposal of the petition. 3. Petitioners have challenged a .....

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anual of Supplementary Instructions 2005 . 4. Petitioner No.1 is a company registered under the Companies Act and is engaged in manufacturing of filters and filtration systems falling under Chapter 84 of First Schedule of Central Excise Tariff Act, 1985. The petitioner No.1-Company purchased land from M/s.Saj Bio Fules Pvt. Ltd. (herein after referred to as 'erstwhile owner') through a registered sale-deed dated 28.9.2011. 5. The petitioners applied online and obtained provisional regist .....

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₹ 8.39 lacs. It was also alleged that upon site inspection, the Excise Officers found that there was no plant or machinery available at the site for the purpose of production. Principally on these two grounds, petitioners were called upon to show cause why such registration should not be canceled. 6. Petitioners opposed such show cause notice and also appeared for personal hearing before the adjudicating authority. However, by the impugned order, the authority canceled registration upon w .....

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hould be fully operational. The sole surviving issue would be the objection of the department regarding continued registration and outstanding dues of the erstwhile owner. 8. Regarding this issue, learned counsel for the petitioner placed reliance on following decisions: (i) In the case of Surat Metallies Ltd. and Anr. V/s. Commissioner of Central Excise and Anr. reported in (2011) 2 GLR 1404; (ii) Judgment dated 23.8.2012 in SCA No.5193 of 2009 in case of M/s. Jahaan Steel Ltd. V/s. Union of In .....

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very property in question being Plot Nos.548 and 549, GIDC Estate, Vaghodia, Vadodara issued in favour of erstwhile owner - Plot Nos.548 and 549, GIDC Estate, Vaghodia, Vadodara, is still not cancelled and/or deregistered and there are Central Excise dues of the erstwhile owner - M/s.Jem Ispat Ltd. and therefore, Registration Certificate cannot be granted in favour of the petitioner No.3 - subsequent purchaser for the very property, is concerned as such the said issue is squarely covered by the .....

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pon by the learned counsel appearing on behalf of the respondents and the Bombay High Court in the case of TATA Metalinks Ltd. (supra) in para 5 and 6 has considered and dealt with in extenso Section 6 of the Central Excise Act and Rule 9 of the Central Excise Rules, by observing in para 5 and 6 as under :- We shall first consider the issues in Writ Petition No. 759 of 2006 in the matter of registration of the establishment of the Petitioners. Section 6 of the Central Excise Act reads as under: .....

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se 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 .....

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e registration made under this sub-rule for the purpose of these Rules. (2) The Board may by notification and subject to such conditions or limitations as may be specified in such notification, specify person or class of persons who may not require such registration. (3) The registration under Sub-rule (1) shall be subject to such conditions, safeguards and procedure as maybe specified by notification by the Board. Sub-rule (3) of Rule (9) contemplates that the registration shall be subject to t .....

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ansferee shall get himself registered afresh. (Emphasis supplied) (d) Every registered person, who ceases to carry on the operation for which he is registered, shall de-register himself by making a declaration in the form specified in Annexure III and depositing his registration certificate with the Superintendent of Central Excise. These are some of the requirements as set out under the rules. A combined reading therefore, of Section 6 of the Act read with Rule 9 as also the notification shows .....

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lier registration is deregistered or 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 sai .....

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efaulted 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 registration certificate. It appears as per the facts on record that Ludhiana Woolen and Silk Mills Pvt. Ltd. has been indulging in the act of systematic induction of difference licensees in the very premises and helping them to defraud the central excise dues. It .....

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uccessive registration in respect of the same premises. If that be so, one and the same premises cannot be registered in the name of two different persons. The court proceeded to hold that the person holding earlier registration certificate must surrender registration certificates in respect of that premises, then only a new person can get registration in respect of that premises. From the facts, it will be clear that earlier though M/s. Swastik were in arrears fresh registration was granted in .....

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(supra) had an occasion to consider the similar issue with respect to nonissuance of Registration Certificate in favour of subsequent purchaser and had occasion to consider the decision of the Bombay High Court in the case of TATA Metalinks Ltd. (supra) and the Division Bench in the case of Surat Metallics Ltd. (supra) in para 28 and 29 has observed and held as under :- Though not expressly stated in the order refusing registration, before the Court, on behalf of the respondent No.1, it has bee .....

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n exercise of powers under rule 9 of the Central Excise Rules, 2001 which provides for the conditions, safeguards and procedures for registration and exemption in specified cases. Reference was made to clause (2) thereof which says that if the person has more than one premises requiring registration, separate registration certificate shall be obtained for each of such premises; clause (4) thereof which says that where a registered person transfers his business to another person, the transferee s .....

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said contention, the learned counsel had placed reliance upon a decision of the Bombay High Court in the case of Manibhadra Processors vs. Additional Commissioner of Central Excise (supra) wherein it has been held that one and the same premises cannot be registered in the name of two different persons. That person holding earlier registration certificate must surrender registration certificate in respect of that premises, then only can a new person get registered in respect of that premises. Ho .....

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o, it is the person who has to get registered. The notification in Clause (2) only sets out that if such registered person has more than one premises, then each of such separate premises would require registration certificate for each of such premises. In other words, it is the person who has to obtain separate registration certificate for each of the said premises. It is open to a person who has ceased to carry on the business to apply for deregistration. Would that mean in the absence of the p .....

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r 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 o .....

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