TMI Blog2018 (2) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... ntary transfer by "the person" when the transfer takes place under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002? - Held that: - considering the language of the proviso to Section 14 2 of Customs Act and relying on the judgment of Macson Marbles Pvt. Ltd. v. Union of India, [2003 (11) TMI 71 - SUPREME COURT OF INDIA] the transfer can be said to be transfer which is voluntary. Does the mere purchase of the immovable/movable assets of a tax defaulter amount to transfer or disposal of business or trade in whole or in part or result in effecting change in ownership thereof in such business or trade by any other person, consequence of which such person is succeeded in such business or trade by any other person? - Held that: - considering the provisions of the SARFAESI Act, the provisions of the said Act will prevail over the provisions of the Customs Act and Central Excise Act. Once the Petitioner had purchased the assets in an auction held under the SARFAESI Act, they will hold the assets free from any encumbrances - demand is without jurisdiction. Demand set aside - appeal allowed. - Appeal No. E/1255/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section is incorrect. The Commissioner (Appeals) on merits held that since M/s Raj Yash Alloys had opted to pay duty under Rule 96ZO (3), the question of allowing concession under Section 3A (4) does not arise for the subsequent period as both are alternate option. That the above point was not raised in reply nor in grounds of appeal and thus the Appellant cannot raise point beyond the scope of show cause notice as held in case of Carrier Aircon 2005 (184) ELT 113 (SC) and Saci Allied products Ltd. 2005 (68) RLT 227 (SC). On the issue of Non recovery of dues of M/s Raj Yash Alloys from the Appellant he held that in terms of Section 11A the dues of the predecessor can be recovered from the successor. As the appellant has taken over by the Appellants, they are liable for the same. The Appellate Commissioner relied upon the judgment of Hon ble Supreme Court in case of Macson Marbles Pvt. Ltd. Vs. UOI 2003 (158) ELT 424 (SC). Therefore the appellants are before us. 3. Shri V.M. Doiphode, ld. Counsel appearing on behalf of the appellant submits that the unit was not transferred to the Appellant. The case is not transfer of ongoing business or trade in whole or in part from M/s R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (including the amount required to be paid to the credit of the Central Government under section 28B) is not paid - (a) the proper officer may deduct or may require any other officer of customs to deduct the amount so payable from any money owing to such person which may be under the control of the proper officer or such other officer of customs; or (b) the Assistant Commissioner of Customs or Deputy Commissioner of Customs may recover or may require any other officer of customs to recover the amount so payable by detaining and selling any goods belonging to such person which are under the control of the Assistant Commissioner of Customs or Deputy Commissioner of Customs or such other officer of customs; or (c) if the amount cannot be recovered from such person in the manner provided in clause (a) or clause (b) - (i) the Assistant Commissioner of Customs or Deputy Commissioner of Customs may prepare a certificate signed by him specifying the amount due from such person and sent it to the Collector of the district in which such person owns any property or resides or carries on his business and the said Collector on receipt of such certificate shall proceed to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... control of Assistant Commissioner of Customs or Deputy Commissioner of Customs or such other officer of Customs. If it cannot be recovered in this manner, then the Assistant Commissioner of Customs pursuant to that may prepare certificate specifying the amount due and sent it to the Collector of the District where such person holds any property or resides or carry on his business, to recover from such persons the amounts specified, as if arrears of land revenue. The other method is by deduction as set out therein. There is also proviso that if the amount payable under the Act is not paid, and if person transfers or otherwise disposes of his business or trade in whole or in part, or affects any change in the ownership thereof, in consequence of which he is succeeded in such business or trade by any other person, all goods, materials, preparations, plants, machineries, vessels, utensils, implements and articles in the custody or possession of the person so succeeding may also be attached and sold by the proper officer, after obtaining written approval from the Commissioner of Customs, for the purposes of recovering the amount so payable by such predecessor at the time of such transf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of tax defaulter under the provisions of the Central Excise Act before it is sold by a secured creditor under the provisions of the SARFAESI Act 3. Can a transfer be said to be a voluntary transfer by the person when the transfer takes place under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. 4. Does the mere purchase of the immovable/movable assets of a tax defaulter amount to transfer or disposal of business or trade in whole or in part or result in effecting change in ownership thereof in such business or trade by any other person, consequence of which such person is succeeded in such business or trade by any other person In the instant case the issues will cover both Customs and Central Excise dues. In so far as the first issue is concerned, we have held that the Government dues do not have priority of claim over that of the secured creditors. However, if the Legislature makes those dues as having priority of claims as noted by the Supreme Court in State of M.P. v. State Bank of Indore, 2002 (10) SCC 441, The State Bank of Bikaner and Jaipur v. National Iron and Steel Rolling Cor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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