2010 (3) TMI 695 - AT - Central Excise

Stay - Premises attached for recovery of payment - Appellant leased out the factory to person - against whom the department has made out a case for payment - factory premises has been attached for recovery of the same - Lease deed clearly provides premises shall not be vacated without consent of the authority concerned or without fulfilment of export obligation - Held that - stay can not be granted since there is no duty demand is involved and appellant is not seeking waiver of pre-deposit or stay against recovery of dues - application and stay the action to dispose of the property by the Revenue, during pendency of appeal - allowed

Summary

Issues:
1. Attachment of factory premises for recovery of dues under Section 11 of Central Excise Act, 1944.
2. Liability of successor for dues payable by lessee.
3. Applicability of amended provisions of Section 11.
4. Grant of stay against disposal of property by the Revenue.

Analysis:

1. The issue of attachment of factory premises for recovery of dues under Section 11 of the Central Excise Act, 1944 was considered in this case. The appellant had leased out the factory to a company against whom the department claimed a substantial amount due to non-discharge of export obligations. The lower authorities held that the department had the power to attach the factory even though the appellant had regained possession, based on the lease agreement's condition that the factory could not be vacated until export obligations were fulfilled. The Tribunal found that the lessee could still be considered in possession of the property as per the lease agreement, allowing the department's right to attach the property for recovery of dues.

2. The question of the successor's liability for dues payable by the lessee was raised during the proceedings. The appellant argued that they should not be held responsible for the dues owed by the lessee, citing various Tribunal decisions supporting their stance. However, the department contended that due to the specific provision in the lease agreement preventing the lessee from vacating the premises until obligations were met, the department had the authority to attach the factory. The Tribunal agreed with the department, emphasizing that the lessee was still deemed in possession of the property as per the lease agreement, thereby justifying the attachment for recovery of dues.

3. The applicability of the amended provisions of Section 11 to the case was discussed. The appellant claimed that the amended provisions making successors liable for dues were not in force during the relevant period. The Tribunal found that the specific conditions in the lease agreement regarding possession and export obligations rendered the amendment irrelevant to the current situation. Therefore, the Tribunal held that the decisions cited by the appellant were not applicable, and the department had a strong prima facie case for attaching the property.

4. Lastly, the issue of granting a stay against the disposal of the property by the Revenue was addressed. The Tribunal acknowledged the absence of a duty demand and the appellant not seeking a waiver of pre-deposit or stay against recovery of dues. However, the Tribunal asserted its inherent powers to pass orders and allowed the application for stay subject to the appellant providing an undertaking not to dispose of or encumber the property during the appeal's pendency. Consequently, the Tribunal granted a stay against the Revenue's action to dispose of the property during the appeal process.