2010 (3) TMI 428 - AT - Central Excise

Stay of Order- Appellant had leased out the factory to M/s. Bhavay Apparels Pvt. Ltd, against whom the department has made out a case for payment of Rs. 35,94,63,666/- on the ground that export obligation was not discharged. Since M/s. Bhavay Apparels Pvt. Ltd has not paid the dues, factory premises has been attached for recovery of the same. Lower authorities have passed the order holding that department has power to attach the factory. Held that- amount involved more than Rs. 35 crores. Attachment of property. Submission that property lying idle for last 5 years, neither beneficial to appellant nor to the department fact that amount involved more than Rs. 35 crore, fit case for granting early hearing. Application allowed.

Summary

Issues:
1. Authority to attach factory premises leased out 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. Granting of stay against disposal of property during pendency of appeal.
5. Early hearing application due to significant amount involved.

Issue 1: Authority to attach factory premises leased out for recovery of dues under Section 11 of Central Excise Act, 1944:
The Appellate Tribunal upheld the lower authorities' decision that the department had the power to attach the factory premises leased to a company against whom dues were pending. The lease deed specified that the factory could not be vacated until export obligations were fulfilled, allowing the department to sell the property to recover the dues.

Issue 2: Liability of successor for dues payable by lessee:
The advocate for the appellant argued that the amended provisions holding successors liable for dues were not in effect during the relevant time. He contended that the appellant should not be responsible for the lessee's dues. However, the Tribunal found that the lessee, legally, was still in possession of the property, allowing the department to attach it for recovery.

Issue 3: Applicability of amended provisions of Section 11:
The Tribunal determined that the amended provisions of Section 11 and the amendment dated 10-9-2004 were not relevant to the case. The department had a strong prima facie case to attach the property, and the decisions cited by the appellant's advocate were deemed irrelevant.

Issue 4: Granting of stay against disposal of property during pendency of appeal:
The Tribunal granted a stay against the disposal of the property by the revenue during the appeal's pendency. The appellant agreed not to dispose of or encumber the property while the appeal was ongoing, subject to giving an undertaking to the jurisdictional Assistant Commissioner/Divisional Commissioner.

Issue 5: Early hearing application due to significant amount involved:
Due to the substantial amount involved (over Rs. 35 crores) and the property lying idle for five years, the Tribunal granted an early hearing. The matter was scheduled for final hearing on 13-5-2010, considering the financial implications and the need to resolve the issue promptly.

This detailed analysis of the judgment highlights the key issues addressed by the Appellate Tribunal in the case, providing a comprehensive overview of the legal reasoning and decisions made.