2016 (4) TMI 888 - HC - Central Excise

Justification of respondent Central Excise authorities in calling upon the GIDC not to register any transfer of the subject plot without production of an NOC from the Central Excise authorities - Held that - On a perusal of the notice dated 11.12.2013 it appears that a huge demand of ₹ 1,87,05,178/- has arisen on 25.2.2008, which is subsequent to the date of transfer of the subject plot in favour of the petitioner. It cannot be gainsaid that when the subject plot stood transferred in favour of the petitioner in August 2007, subsequent dues of M/s. Mahalaxmi Processors cannot be sought to be recovered from the petitioner, more particularly, when none of the requirements of section 11 of the Central Excise Act are satisfied in the present case. Also as rightly submitted by the learned counsel for the petitioner, section 11E of the Act was brought on the statute book long after the subject plot stood vested in the petitioner and hence, would have no applicability to the facts of the present case. Considering the case from any angle, the respondent Central Excise authorities, do not have any authority in law to direct the fourth respondent GIDC not to register the transfer of change of ownership without obtaining an NOC from the Central Excise authorities. Consequently, the impugned letter dated 20.5.2014 issued by the Superintendent of Central Excise, Range III, Division V, Surat -I to Regional Manager, GIDC requesting him not to change the ownership of the said premises, that is, Plot No.821 Road No.8, GIDC Sachin, Surat, in any other name unless No Objection Certificate is issued by that office so as to enable that office to recover huge Government dues outstanding against M/s. Mahalaxmi Processors, cannot be sustained. Insofar as the challenge to the notice dated 11.12.2013 is concerned, the same is addressed to M/s. Mahalaxmi Processors and does not in any manner prejudice the case of the petitioner. Under the circumstances, as rightly submitted by the learned counsel for the respondents, the petitioner has no locus standi to challenge the same. In the light of the above discussion, the petition succeeds and is, accordingly, allowed in the following terms as the impugned communication dated 20.5.2014 addressed by the Superintendent of Central Excise, Range III, Division V, Surat -I to Regional Manager, Gujarat Industrial Development Corporation is hereby quashed and set aside. Consequently, the GIDC would no longer be justified in imposing condition No.21 in the communication dated 1.9.2015 and shall, therefore, effect the change in the constitution of the Board of the petitioner company without insisting upon compliance of the condition of obtaining NOC from the Central Excise Department. Rule is made absolute accordingly to the above extent with no order as to costs.

Summary

Issues Involved:
1. Validity of the attachment notice and demand recovery from M/s. Mahalaxmi Processors.
2. Legitimacy of the condition imposed by GIDC for obtaining an NOC from the Central Excise Department for transfer of the plot and change in the Board of Directors.

Issue-wise Detailed Analysis:

1. Validity of the attachment notice and demand recovery from M/s. Mahalaxmi Processors:

The petitioner challenged the attachment notice dated 11.12.2013 and the demand recovery for dues crystallized between 2003 and 2008. The petitioner argued that no timely action was taken by the respondents to recover these dues, and the notice issued in 2013 was barred by limitation. The court referenced the decision in Valley Velvet Private Limited v. Union of India, highlighting that powers must be exercised within a reasonable time if no time limit is prescribed. The court found that the demand notice issued after considerable delay was not reasonable and thus barred by limitation. Furthermore, the court noted that the property was transferred to the petitioner in 2007, and subsequent dues of M/s. Mahalaxmi Processors could not be recovered from the petitioner.

2. Legitimacy of the condition imposed by GIDC for obtaining an NOC from the Central Excise Department for transfer of the plot and change in the Board of Directors:

The petitioner sought to quash the condition imposed by GIDC requiring an NOC from the Central Excise Department for the transfer of plot No.821 and change in the Board of Directors. The court examined the lease deed and assignment records, confirming that the plot was transferred to the petitioner in 2007 and that M/s. Mahalaxmi Processors had no right, title, or interest in the plot. The court analyzed Section 11 of the Central Excise Act, which allows for the recovery of dues by attachment and sale of excisable goods belonging to the defaulter. The court found that the basic requirement for invoking Section 11 was not met, as the plot did not belong to M/s. Mahalaxmi Processors. Additionally, the court noted that Section 11E, which creates a first charge on the property of an assessee, was introduced after the plot was transferred to the petitioner and thus did not apply. Consequently, the court held that the Central Excise authorities had no legal basis to demand an NOC for the transfer of the plot and change in the Board of Directors.

Judgment:

The court quashed the communication dated 20.5.2014 by the Superintendent of Central Excise, which requested GIDC not to change the ownership of the plot without an NOC. The court directed GIDC to effect the change in the constitution of the Board of Directors of the petitioner company without insisting on compliance with the condition of obtaining an NOC from the Central Excise Department. The petition was allowed to this extent with no order as to costs.