9911796707
TMI Blog2024 (5) TMI 1333X X X X Extracts X X X X X X X X Extracts X X X X ..... y. 2. The issue involved herein is whether the Department can attach a jointly owned immovable property, under Customs (Attachment of Property of Defaulters of Recovery of Government Dues) Rules, 1995 for recovery of its dues, of which 80% share stands in the name of persons who have nothing to do with the government recovery? The facts leading to the filing of the instant appeal are stated in brief as follows. M/s. Turbo Micro Systems was a partnership firm having four partners and the appellant herein is also one of them. The said partnership firm was dealing in resale of computer and its parts. The shares of the partners were as under:- (i) Shri Prashant M. Golwala - -33% (ii) Shri Anand Sorte -33% (iii) Rakesh Jagdish Mehta -25% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of Recovery of Government Dues) Rules, 1995 (hereinafter referred to as 'Rules of 1995') and it has been mentioned in Appendix-VIIC of the said order that the appellant herein being partner of M/s. Turbo Micro System has not paid the arrears amounting to Rs.14,35,346/- (Rupees fourteen lakhs thirty five thousand three hundred and forty six only) in respect of certificate No.01/2005 dated 25.2.2005 and the interest payable u/s. 11AA of Central Excise Act, 1944 for the period commencing immediately after the said date. The said appendix to the notice acknowledged that the appellant is only one of the joint owners of the attached property. 5. Feeling aggrieved, the appellant filed appeal against the aforesaid order of attachment, before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonal penalty in the said amount, the total liability of the appellant comes to Rs.4,33,836/-[emphasis supplied]. So far as the father of the Appellant is concerned who was partner of 9%, his duty liability comes to Rs.51,091/- and equal penalty share Rs.51,091/- and adding personal penalty of Rs.1,50,000/- the total liability of appellant's father Mr. Jagdish M. Mehta comes to Rs.2,52,181/-[emphasis supplied]. Adding both the aforesaid amounts together, the total liability of the father & son duo comes out to Rs. 6,86,018/- which has already been paid. According to learned counsel, the other two partners of M/s. Turbo Micro System who are 66% shareholders have not paid any amount although their share of duty and penalty on the firm comes t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and does not wish to pursue the same anymore as the erstwhile Partners are unlikely to be pursued by the Department despite his request and his joint property is being arbitrarily held under attachment. As such, the Appellant has paid off the balance 66% amount of duty and penalty Rs.7,49,328/- as above and hence the entire liability of duty and penalty on the Firm M/s TMS as well as his own personal penalty as well as that of his late Father is now paid off and settled. Copy of Challan CTIN No. 2402615234 dated 05-02-2024 for Rs. 7,49,340/- (Balance duty + Penalty) is hereto annexed and marked as (Exhibit B)." It is not disputed anywhere that the brothers of the appellants, who are the majority shareholders of the immoveable property i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submission of the appellant and also of two other partners in the joint property recorded the finding as under:- "8. The submission that the attachment order ought to have specifically mentioned attachment only to the extent of defaulter's interest in the attached properties also need not detain me any further because such non-mention do not give the attaching officer any discretion to seize such interests which do not belong to the defaulting partners. Such a specific mention, however, would deprive the attaching officer to put such properties to auction to recover the dues from the defaulter. Upon such auction the recovery would limit only to the defaulter's interest and the balance amounts would go to the uninterested owners in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the personal property of some other partnership in which the majority of the shareholders have nothing to do with the recovery of the government dues, the notice of attachment of said property is bad in law. 10. As discussed earlier the entire duty amount alongwith equal penalty has been paid by the appellant herein alongwith personal penalty on him as well as on his father. Now the issue is about the interest imposed on the duty amount, by the adjudicating authority in Order-in-Original dated 24.02.1998 which has attained finality. The interest has been imposed under section 11AB of Central Excise Act, 1944. Here it is interesting to note that duty demand has been made and confirmed for the goods cleared during the year 1993 and the sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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