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TMI Blog2010 (11) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of an immovable property situated at 143A, Government Industrial Estate, Kandivali (West), Mumbai-67. The said attachment order dated 22-7-2005 was issued as part of proceedings to recover certain amounts of Central Excise duty (with interest) and penalties from the said company. The present applicants/appellants are claiming ownership over the said property and, therefore, praying for stay of operation of the attachment order. Shri Harish Chandra Gupta had filed Writ Petition No. 2288 of 2005 before the Hon ble High Court against the attachment order. The Hon ble High Court, based on consensus, disposed of the writ petition with a direction to the Commissioner to pass a speaking order in relation to the title claimed by the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way of remand directing the Commissioner to pass fresh order after considering the entire evidence on record about the ownership of the property and after giving the appellant an opportunity of being heard. It was in pursuance of the remand order that the ld. Commissioner passed order dated 11-8-2009 which is presently under challenge. The impugned order has sustained the attachment proceedings in respect of the property. 2. Ld. counsel for the appellants, the legal heirs of late Shri Harish Chandra Gupta, submits that the property belongs to the appellants as legal heirs of the deceased. It is submitted that the property originally belonged to the Maharashtra State Government, that it was given to Shri Harish Chandra Gupta on 30 years l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 73 wherein the Governor of Maharashtra granted 30 years lease to Shri Harish Chandra Gupta against annual payment of rent. The Lease Deed describes the property as a plot of land or ground situated in Kandivali Industrial Estate being registered No. 143-A in the map marked sheet No. DRG No. 74/62 and containing about 636 square yards (532 square metres). The ld. counsel has also referred to certain other documents evidencing issuance of shares by Kandivali Estate to Shri Harish Chandra Gupta. One of these documents is a letter dated 30-12-2005 of Kandivali Estate to Shri Harish Chandra Gupta, which, inter alia, states thus - The plot bearing No. 143-A admeasuring 532 sq. mtrs is allotted to Shri Harish Chandra Gupta by the Collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Government. M/s. Sensotherm (I) Pvt. Ltd. defaulted duty to the exchequer and, therefore, the property held by them was attached under Sec. 142 of the Act and the relevant Rules thereunder. According to the ld. SDR, for an order of attachment to be made under Sec. 142, the property need not be owned by the defaulter. It is enough if the property is in the defaulter s control. It is submitted that Shri Harish Chandra Gupta or his legal heirs have not been able to establish that the property in question was in their control or possession at any stage of the material period. It is, therefore, argued that the attachment order was lawfully issued and its operation cannot be stayed, as the appellants have not made out a favourable case for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing its retransfer to Shri Harish Chandra Gupta has been produced by him or his legal heirs. Prima facie, this finding of the Commissioner is yet to be successfully disproved. Neither the memoranda of the appeals nor the present applications provide any valid ground against the above finding of the Commissioner. The ld. Counsel has, particularly, relied on the Ruled Card coupled with the Lease Deed dated 31-12-1973. The property covered by the Lease Deed is seen to be mentioned in the Ruled Card . The Ruled Card entry dates back to 1974. No revised Ruled Card showing continuity of entitlement of Shri Harish Chandra Gupta/legal heirs has been produced by the appellants, to our satisfaction. Some documents referred to by the counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants are yet to establish that the subject-property was under the control of late Shri Harish Chandra Gupta during the material period. On the other hand, the Commissioner s finding is that the property had vested in the aforesaid company as early as in April, 1993 and that there is no evidence of retransfer of the property to Shri Harish Chandra Gupta. It is this finding which is yet to be successfully rebutted. In any case, the attachment proceedings against M/s. Sensotherm (I) Pvt. Ltd. can, apparently, continue on the ground that that company has atleast exercised control over the property. In the absence of evidence to show late Shri Harish Chandra Gupta or his legal heirs had been in possession of the property during the materia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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