2015 (10) TMI 1806 - AT - Central Excise

Recovery of duty - Attachment of property - Section 11 - Held that - reliance placed by the Revenue on an undertaking given by the Respondent in the year 2001 was not properly appreciated by the first appellate authority under which Respondent has clearly agreed to pay the dues pertaining to M/s. Namokar Processors as and when the issue is decided in favour of the department. There is nothing in this undertaking to suggest that liabilities arising after undertaking will be paid by the Respondent. This aspect has to be examined in the latest judgment of Allahabad High Court in the case of Rana Girders Limited vs. UOI (supra) which was also not available before the first appellate authority while deciding the issue. In the interest of justice, this matter is thus required to be remanded back to the first appellate authority for deciding the issue in de-novo proceedings. Revenue should bring to the notice of the first appellate authority the documents placed before the Bench including the latest judgment of the Allahabad High Court. - Matter remanded back - Decided in favour of assessee.

Summary

Issues: Appeal against order allowing appeal filed by Respondent, attachment of properties for recovery of confirmed duty and penalties, sustainability of demand issued after one year, interpretation of undertaking given by Respondent, applicability of recent judgment of Allahabad High Court.

Analysis:
1. The appeal was filed by the Revenue challenging the order allowing the appeal filed by the Respondent. The issue revolved around the attachment of properties for the recovery of confirmed duty and penalties based on a show cause notice. The adjudicating authority had ordered the attachment of properties to recover the confirmed dues.

2. During the hearing, the Respondent did not appear, and it was noted that on a previous occasion as well, the Respondent was absent. However, in their Cross Objection, the Respondent argued that the demand issued after one year under Section 11 of the Central Excise Act, 1944, was not sustainable.

3. The Revenue argued that the present appellant had taken over the premises from another entity and had given an undertaking to pay the dues of the previous entity. The Revenue relied on a judgment of the Allahabad High Court to support their case, stating that there is no time limit for issuing a show cause notice under Section 11 of the Central Excise Act, 1944.

4. The Tribunal observed that the undertaking given by the Respondent did not clearly indicate that liabilities arising after the undertaking would be paid by them. The Tribunal also noted that a recent judgment of the Allahabad High Court was not available before the first appellate authority. Therefore, the matter was remanded back to the first appellate authority for a fresh decision, considering the documents and the recent judgment.

5. Consequently, the appeal filed by the Revenue was allowed by way of remand to the first appellate authority. The first appellate authority was directed to afford an opportunity of personal hearing to the Respondent to explain their case in light of the available documents and the relevant case law of the Allahabad High Court.

This detailed analysis covers the issues raised in the judgment, including the interpretation of the undertaking, sustainability of the demand, and the applicability of the recent judgment of the Allahabad High Court, resulting in the decision to remand the case for further consideration.