9911796707
TMI Blog2010 (12) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... dent - National Textile Corporation Limited, which floated a tender to sell some of the properties originally belonged to M/s.Balaramaverma Textile Mills Limited. The petitioner participated in the tender and emerged with successful bidder. Accordingly, a sale deed was executed in favour of the petitioner - company by the fourth respondent - National Textile Corporation Limited. In pursuance of the same, the petitioner has become the absolute owner of the said properties. 2. While so, it came to light that M/s.Balaramaverma Textile Mills Limited had fallen in arrears to the tune of Rs.12,00,000/- towards excise duty and penalty of Rs.10,000/- payable under the Central Excise Act, 1944 to the third respondent. Therefore, the third re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrict along with buildings, trees etc., from the 4th respondent for valuable consideration. The sale was effected after following the procedure by executing a sale deed on 05.04.2007. The property mentioned above was acquired by M/s.NTC under the Sick Textiles undertakings Nationalization Act 1974. The entire property was sold to the petitioner free from encumbrances or any claim, demand, attachment and charge. 5. I submit that the 4th respondent as the vendor will abide by the terms of the sale deed under which the property above mentioned were conveyed in favour of the petitioner herein. It is needless to point out that the right of the petitioners is fully protected by virtue of specific provisions of Transfer of Property Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind payable to the Central Government under any of the provisions of this Act or of the rules made thereunder, [including the amount required to be paid to the credit of the Central Government under Section 11-D], the officer empowered by the [Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963, (54 of 1963) to levy such duty or require the payment of such sums may deduct the amount so payable from any money owing to the person from whom such sums may be recoverable or due which may be in his hands or under his disposal or control, or may recover the amount by attachment and sale of excisable goods belonging to such person; and if the amount payable is not so recovered he may prepare a certificate s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eds in such business or trade such person, who succeeds in the business, is liable to pay the dues. Therefore, the crucial question is as to whether the transfer of the trade or business has been effected. The contention of the petitioner is that the trade or business conducted by the M/s.Balaramaverma Textile Mills Limited, was not at all transferred to the petitioner. The said trade or business was transferred only to the fourth respondent - National Textile Corporation Limited. That is the reason why, the fourth respondent -National Textile Corporation Limited has admitted his liability to pay the dues on behalf of the M/s.Balaramaverma Textile Mills Limited. But, insofar as the petitioner - company is concerned, there has been no such t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the said provision, the Hon'ble Supreme Court in Paragraph No.15 has held as follows;- "15. A careful reading of Section 15(1) of the KST Act shows that the consequences contemplated therein, namely, foisting of the liabilities of the defaulting transferor onto the transferee, would come into effect only if the "ownership of the business" is transferred. Although, Mr.Hegde strenuously urged that "business" could not be separated from the assets of the business, we are unable to accept this contention. Business is an activity, directed with a certain purpose, more often towards producing income or profit. Ownership of assets is merely an incident rather than a characteristic of business. Hence, the mere transfer of one or more species o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view taken by the Division Bench in R.K.Steels' Company's case as well as the Judgment of the Hon'ble Supreme Court, referred to above. 14. In view of the above settled position of law, since it is undoubtedly clear that the petitioner has not got the business or trade of either M/s.Balaramaverma Textile Mills Limited or the fourth respondent transferred and since the petitioner has got by transfer by sale only of the properties belonging to the said fourth respondent - National Textile Corporation Limited, the amount due towards Central Excise as well as towards interest under the Central Excise Act, 1944, from M/s.Balaramaverma Textile Mills Limited, cannot be recovered from the petitioner at all and thus, the petitioner is not li ..... X X X X Extracts X X X X X X X X Extracts X X X X
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