TMI Blog2018 (11) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... to be debris of old go-down tin shed situated at industrial area, Bhilai. It nowhere recites that the appellant has either purchased the whole industry or plant and machinery owned by M/s Gyan Industry. Before issuing the demand notice, the appellant was not called upon to satisfy the department that he is not successor company of the M/s Gyan Industry. By issuance of demand notice for deposit of ₹ 22,19,135/-, the appellant has been condemned unheard. The term “successor in interest” is not merely a term but it has definite connotations depending upon the nature of provisions defining the said term and the liability of a person who is successor in interest to pay the Government or other dues within statutory scheme. The issue needs to be adjudicated by the authority before issuance of demand notice. However, the appellant having not been heard, there is flagrant violation of principles of natural justice and the appellant cannot be left without any remedy in law merely because he has purchased some debris of old go-down tin shed situated at industrial area, Bhilai where at some prior point of time an industry was operational. Matter remitted back to the adjudicating au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed the Assistant Commissioner, Central Excise Division, Bhilai-II that he has not purchased any land, plant and machinery from M/s Gyan Industries, therefore, dues may be recovered from M/s Gyan Industries or for that matter from M/s Jagriti Rolling Mills and not from the appellant. 3. The appellant thereafter moved WP(T) No.182/2014,which came to be dismissed on 13.1.2015 with liberty to prefer appeal under Section 35 of the Act. The appellant thereafter preferred WP(T) No.16/2016 which was again withdrawn with liberty to file an appeal. Thereafter, the appellant preferred an appeal before the Commissioner (Appeals) which has dismissed the appeal as barred by limitation and the Tribunal has also dismissed the appeal refusing to interfere with the order passed by the Commissioner (Appeals). 4. It is argued that the appellant has never been heard by the adjudicating authority before fastening the liability of payment of dues against M/s Gyan Industries. The authorities of the Central Excise Department has assumed that the appellant is the successor industry of M/s Gyan Industries, without affording opportunity of hearing, therefore, if the appeal is not entertained on the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose of condoning the delay in filing the appeal? (3) When if the statutory remedy or appeal under Section 35 is barred by the law of limitation whether in a Writ Petition under Article 226 of the Constitution of India, the order passed by the original adjudicating authority could be challenged on merits? 8. The Full Bench, after considering various decisions on the subject including Singh Enterprises (Supra), observed in para-29 that the contention of learned counsel for the Revenue that the decision of the High Court taking the view that it had no power to condone the delay after the expiry of the period of 30 days should mean that the High Court will have no jurisdiction under Article 226 in a case where the period of 30 days is over cannot be countenanced for the simple reason that whether the High Court should exercise the power to condone the delay after expiry of the period of 30 days while exercising the power under Article 226 of the Constitution is one thing, but whether the jurisdiction of the High Court under Article 226 of the Constitution is affected by the statutory provision of section 35 of the Act is another thing, with further observation that the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h no substantial relief. It was also observed in para-11 that it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy and that the Court in extraordinary circumstances may exercise power if it comes to the conclusion that there has been a breach of the principles of natural justice or the procedure required for decision has not been adopted. 10.It is thus settled that the High Court can exercise extraordinary writ jurisdiction under Article 226 of the Constitution of India if the petitioner has been subjected to gross injustice and the order adverse to him has been passed in flagrant violation of principles of natural justice and that procedure adopted was either unfair or dehors the provisions of law. 11. In the case at hand, the Revenue has unilaterally assumed that the appellant is successor industry of M/s Gyan Industry without affording any opportunity of hearing to the appellant. The sale deed in favour of the appellant describes the property purchased by it to be debris of old go-down tin shed situated at industrial area, Bhilai. It nowhere recites that the appellant has either purchased the whole i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the liability to pay the Government dues even without a binding statutory charge can be fastened on that person who had purchased the entire unit as an ongoing concern and not a person who had purchased land and building or the machinery of the erstwhile concern. It is only in those cases where the buyer had purchased the entire unit i.e. the entire business itself, that he would be responsible to discharge the liability of Central Excise as well. Otherwise, the subsequent purchaser cannot be fastened with the liability relating to the dues of the Government unless there is a specific provision in the statute imposing a first charge in respect of government dues on subsequent transferees/purcahsers. The Supreme Court thereafter held in para-23 thus:- 23. We may notice that in the first instance it was mentioned not only in the public notice but there is a specific clause inserted in the sale deed/agreement as well, to the effect that the properties in question are being sold free from all encumbrances. At the same time, there is also a stipulation that all the statutory liabilities arising out of the land shall be borne by the purchaser in the sale deed and all the statut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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