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TMI Blog2016 (7) TMI 889X X X X Extracts X X X X X X X X Extracts X X X X ..... urable High Court. Thus the appeal is allowed with consequential benefits. - Decided in favor of appellant. - E/Misc./50058/2015 in Appeal No. E/3096/2012(SM) - Final Order No. 70176/2016, Misc Order No. 70138/2016 - Dated:- 8-3-2016 - Shri Anil Choudhary, Judicial Member Present for the Appellant : Shri Anurag Mishra, Advocate Present for the Respondent : Shri S.V. Nair, Assistant Commissioner (AR) ORDER The appellant is in appeal against Order-in-Appeal dated 31/8/2012 passed by the Commissioner (Appeals) Customs, Central Excise and Service Tax, Kanpur. 2. The appellant a Private Limited Company, purchased the assets of one M/s Hans Pharmaceutical Chemical Private Ltd. from the Pradeshik Industrial Corporation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 days, falling which, special mode of recovery as provided under the Customs Act is likely to be taken. The appellant replied immediately stating that they have only purchased the assets and have not acquired the business of Hans Pharmaceuticals and Chemicals, as a going concern. Further, the tax dues of Hans Pharmaceuticals and Chemicals, cannot be collected from them and the Revenue may pursue the matter with pickup or Hans Pharmaceuticals. 4. Thereafter on being so advised the appellant preferred a Writ Petition before the Honourable Allahabad High court being Writ Petition Number 4444 of 2004. In terms of the Interim Order, the appellant deposited ₹ 10 lakhs with the revenue, vide TR-6 Challan dated 3/11/2004, a copy of which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8/2010 the Honourable High Court held that Central Excise Department have only 2 nd charge over the property and have not right to recover such dues from subsequent bonafide purchaser of PICUP, the 1 st charge holder. The Honourable High Court referring to the ruling of the Apex Court in Macscon Marbles Pvt. Ltd. (supra) held is distinguishable and observed that the said ruling nowhere held that Rule 340 of the Rules, create a 1st charge over property in favour of Central Excise Department. 7. The id. Counsel also relied on the ruling of the Apex Court in the case of Rana Girders Ltd. versus Union of India reported in 2013(295) E.L.T. 12 (S.C) wherein under the fact that the State finance Corporation in the event of default had advert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. (1) When the duty leviable on any goods is owing from or by any person carrying on trade or business, whether as a producer, manufacturer or as dealer in such goods, all excisable goods, and all materials and preparations from which any such goods are made, and all plant, machinery, vessels, utensils, implements and articles for making or manufacturing or producing any such goods, or preparing any materials or by which the trade or business is carried on, in the custody or possession of the person carrying on such trade or business, or in the custody or possession of any agent or other person in trust for or for the use of the person carrying on such trade or business, may be detained for the purpose or exacting such duty; and any o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue and appellant, I find that the ruling of Guj. High Court (supra) is not applicable, as in the present case the erstwhile owner, Hans Pharmaceuticals Chemicals, had not sold the unit directly to the appellant. It was the pickup which auction sold the unit in exercise of their statuary power under Section 29 and 30 of the State Finance Corporation Act. Accordingly I allow the appeal and I also quash the notice dated 24/8/2004, issued by the range Superintendent, Jhansi. The appellant will be entitled to refund of the amount of ₹ 10 lakhs (Rupees Ten Lakhs) deposited under the Interim Order of the Honourable High Court. Thus the appeal is allowed with consequential benefits. The refund shall be granted with interest, as per rul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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