TMI Blog2019 (2) TMI 1559X X X X Extracts X X X X X X X X Extracts X X X X ..... such kind of charge from excise department and therefore, it was not open to the department to invoke provision of Section11 to rope in the subsequent purchaser of the property by misconceiving it to be a purchase of business so as to attribute the petitioner successor only for the purpose of invoking Section11, which unfortunately has not been established by the petitioner in the present petition. The Court is of the view that the petitioner can not be held liable to pay any dues of the erstwhile owner of the property in absence of any specific covenant qua the same - petition allowed. - R/SPECIAL CIVIL APPLICATION NO. 13070 of 2018 - - - Dated:- 17-1-2019 - MR S. R. BRAHMBHATT AND MR A. G. URAIZEE, JJ. For The Petitioner : MR. SURIYANARAYANAN IYER, ADVOCATE for MR DHAVAL SHAH (2354) For The Respondent : MR NIRZAR S DESAI (2117) ORAL JUDGMENT ( PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT) 1. Heard learned counsels for the parties. 2. Learned counsel for the petitioner urged the Court in the beginning that as the entire issue is in a very narrow compass, the Court may takeup this matter for final disposal, to which Shri Nirzar Desai, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecovery of the excise dues of one M/s. Shri Ganesh Mahadev Dyeing Mills, a partnership firm whom from the petitioner purchased the property along with the construction and machinery thereon under the Sale Deed dated 7th September 2007 and obtained possession on 1st June 2006, on the specious ground that the petitioner would not liable to make good the excise departmental outstanding under the provisions of Section11 of the Central Excise Act, 1944 (hereinafter referred to as the Act for the sake of brevity) as petitioner was perceived to be successor of the erstwhile owner of the property, which as per the petitioner was wholly incorrect, illconceived and deserve to be quashed and set aside. 5. The facts in brief, as could be gathered from the memo of the petition, deserve to be setout as under in order to appreciate the controversy :- 5.1 The petitioner firm purchased industrial shed in plot no.238(58) comprising an area of 1161.29 m2 in revenue survey no.197/1 and 2, Moje Jolwa, Taluka Palsana, District Surat from Shri Ganesh Mahadev Dyeing Mills vide Sale Deed dated 7th September 2007. 5.2 The name of the petitioner firm was entered in village revenue form no.6 and fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt for ₹ 15.25 lakhs and the said fixed deposit had been marked with the lien of the firm's bankers HDFC Bank, City Light, Surat. 5.5 However, being aggrieved due to the lien marked in 2017 on the revenue form no.7/12 in respect of the industrial plot no.238 (58) in survey no.197/1 2 in Moje Jolwa, Taluka Palsana, District Surat purchased by the petitioner firm on 7th September 2007 from Shri Ganesh Mahadev Dyeing Mills and the impugned certificate dated 25th May 2018 stating that an amount of ₹ 15,10,321/towards outstanding interest payable by Shri Ganesh Mahadev Dyeing and Printing Mills is due from the petitioner firm. Hence, the present petition. 6. Learned counsel for the petitioner invited Court's attention to the provisions of Section11 of the Act and submitted that unfortunately the concerned authority appears to have misconceived the said provision only for seeking recovery from the petitioner, where there exists no basis whatsoever for effecting the same. 7. Learned counsel for the petitioner contended that the petitioner purchased the property after taking the possession of the property on 1st June 2006 by executing a registered sale deed d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the revenue when calledupon to indicate as to how in absence of any specific provision qua the successor owner of the property being made liable to pay the excise dues of the erstwhile owner of the property, he could not reply to this query and rightly so as there exits no provision except in terms of Section11 proviso, which unfortunately could not be attracted or invoked in the present facts, as it is not even the case of the department that there was any suspicious or fraudulent transfer of property or business so as to evade or avoid the excise dues. Assuming for the sake of examining without holding that there was an attempt on the part of the original seller, but so far as the business is not being transferred or the business is not sold as envisaged under Section11 proviso, mere transfer of the property with machinery would remain only the transfer of the property and not transfer of business and this fine distinction between the two appears to have been impressed by the authority while imposing the restrictions upon the use of the property or addressing the letters of the bank to the petitioner. 13. We have perused the sale deed. We have also perused the affidavitinr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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