2017 (5) TMI 878 - AT - Central Excise

Adjustment of sanctioned refund amount against arrears of Central Excise duty of lessor company - Held that - the appellants have not succeeded or acquired the business or trade of the arrears holder and even have not purchased any property of the arrears holder. They have simply entered into a lease agreement with reference to one of the properties of the arrears holder. This cannot make the appellants liable for any Central Excise duty arrears standing in the name of the owner of the land M/s Kalani Industries - the lease deed provisions have no relevance or application to justify the adjustment of sanctioned refund amounts payable to the appellant, against the arrears standing against M/s Kalani Industries - adjustment not allowed - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Liability of the appellant to pay arrears against another legal entity under Section 11 of the Central Excise Act, 1944.

Analysis:
The judgment by the Appellate Tribunal CESTAT NEW DELHI involved five appeals against a common impugned order of the Commissioner (Appeals), Indore. The appellants, engaged in manufacturing and exporting Flexible Intermediate Bulk Containers, had filed rebate claims under Rule 18 of Central Excise Rules, 2002, and refund claims for service tax paid for input services used by their SEZ units. The Original Authority had sanctioned the claims but ordered the amounts to be adjusted against arrears of Central Excise duty pending recovery from another entity. The appellants contested this adjustment, arguing that they were not liable under Section 11 of the Central Excise Act, as they were an independent legal entity and had only leased land from the entity with arrears.

The learned Counsel for the appellants contended that the provisions of Section 11 did not apply in their case, as they had not taken over the business of the entity with arrears. They emphasized their legal independence and the terms of the lease agreement, which stated that the lessee (appellants) would be responsible for taxes on the leased land. The Revenue, however, argued that the appellants could be held liable for the arrears as part of the same group or associate unit of the entity with pending dues.

Upon hearing both sides, the Appellate Tribunal noted that the lower Authorities had failed to examine the applicability of Section 11 to the case. The Tribunal found that the appellants, as a separate legal entity, were not liable for the arrears of the entity from which they had leased land. The clause in the lease agreement regarding taxes on the leased assets did not justify adjusting the refund amounts against unrelated arrears. The Tribunal emphasized that the lease deed provisions were not relevant to the recovery of Central Excise duty arrears.

The Tribunal referred to a decision by the Hon’ble Andhra Pradesh High Court and the Hon’ble Madras High Court, highlighting the requirement for a transfer or disposal of business or trade to establish liability under Section 11. In the present case, the appellants had not succeeded or acquired the business or trade of the entity with arrears, nor had they purchased any property from them. The Tribunal concluded that the appellants entering into a lease agreement did not make them liable for the arrears standing against the entity from which they leased the land.

In a detailed analysis, the Tribunal set aside the impugned order, ruling that it was not legally sustainable. The appeals were allowed, and the Cross Objection by Revenue was disposed of.

(Dictated and pronounced in open court)