2013 (2) TMI 666 - AT - Central Excise

Demand - fraud - attachment of the property - department's request for continuance of attachment and directed the appellant to deposit an amount of ₹ 6 crores - appellant's submission that the attachment of the property by the Revenue should be ordered to be released so as to enable him to dispose the same and deposit ₹ 6 crores as directed by the Tribunal - Difference of Opinion - Majority order - Held that - miserably failed to make out a case, which could justify the reasons how properties under attachment shall be adequate to protect interest of Revenue during pendency of appeal when the very attachment proceeding is quite different and not under appeal before Tribunal and the appellant chose not to place such fact before the Tribunal at the first stage of hearing of stay petition while that was within its exclusive knowledge and not instructed to their Advocates. It is also significant to note that value of the property under attachment is insufficient against the debt of ₹ 80,44,47,396/- due to the State as on the date of hearing the stay application on 27-9-2011. The appellant deliberately suppressed the facts. Truth came out only when discovery process under Section 129C(7) and (8) of the Customs Act, 1962 was resorted to. Dilatory tactics was followed to state the truth to the Courts and revealed in piecemeal abusing process of law. They did not come out with clean hands to deserve consideration. Also they are not able to show how the statutory obligation of pre-deposit during pendency of appeal shall be dispensed or granted concession when they had exclusive knowledge of their financial condition/status due to attachment from the beginning. It was their duty to candidly disclose all their assets, movable and immovable including those in respect of which orders of attachment was passed by the quasi judicial forum. - The facts and circumstances clearly proves that the appellants deliberately suppressed the facts relating to their financial condition during hearing of stay application at the original stage which guided the Appellate Tribunal to order no total exemption from pre-deposit. - Decided against assessee.

Summary

Issues Involved:
1. Whether it is justified to revoke the notice of attachment in respect of all the four items of properties at this stage when the stay order has not taken effect at all.
2. Whether in the facts and circumstances of the case it will be better to order release of properties only to the extent necessary to raise Rs. Six crores at this stage.
3. Whether it will be appropriate to allow the Revenue to take action to realize Rs. 6 crores by completing the process of attachment and sale of such property.

Detailed Analysis:

1. Justification for Revoking the Notice of Attachment:
The appellant was directed to deposit Rs. 6 crores as a condition for hearing their appeal, out of a total confirmed demand of Rs. 28 crores. The appellant challenged this stay order, arguing that their property had been attached and they lacked the means to make a cash deposit. The Hon'ble High Court allowed the appellant to make an appropriate application before the Tribunal. The Tribunal noted that the fact of attachment was not brought to its notice earlier and found no merit in the department's request for the continuance of the attachment. The Tribunal directed the Revenue to release the property to enable the appellant to dispose of it and deposit Rs. 6 crores. However, one member expressed concern that releasing the properties might allow the appellant to evade payment entirely. The third member concluded that it was not justified to revoke the attachment of all properties as it would prejudice the interest of the Revenue.

2. Release of Properties to Raise Rs. Six Crores:
The appellant argued that due to the attachment, they were unable to sell any property to raise the required Rs. 6 crores. The Tribunal initially found merit in this argument and directed the Revenue to release the property to allow the appellant to raise the money. However, another member was concerned that releasing the properties without adequate safeguards might result in the appellant not making any deposit at all. The third member emphasized that the appellant had deliberately suppressed the fact of attachment and that releasing the properties without ensuring the deposit would jeopardize the Revenue's interest. Therefore, it was concluded that no property should be released to safeguard the interest of the Revenue.

3. Revenue's Action to Realize Rs. Six Crores:
The Revenue argued that the value of the attached properties was insufficient to cover the total demand and that the properties should not be released. They suggested that the attached properties should be sold to realize the Rs. 6 crores. The Tribunal noted that the appellant's properties were valued at Rs. 17 crores but had a discrepancy in valuation. The third member concluded that it would be appropriate for the Revenue to proceed with the attachment and sale of the properties to realize the Rs. 6 crores, as the appellant had not come with clean hands and had suppressed material facts.

Final Order:
In view of the majority decision, the Tribunal rejected the Miscellaneous Application for revoking the order of attachment in respect of the properties. The Tribunal extended the time limit for complying with the stay order up to 15-5-2013 and scheduled the case for compliance on that date. The decision was based on the need to protect the interests of the Revenue and the appellant's failure to disclose material facts.