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TMI Blog2005 (3) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... the successor, but the question whether Divya is or is not predecessor of the petitioner has not been answered by the respondent authorities. As already seen, it is not possible to term the petitioner as successor of Divya. And lastly the stand of the Revenue that who is the transferor of the property is not material is an incorrect reading of the provision. The Proviso to Section 11 of the Act specifically requires that the person who is the defaulter is termed as predecessor and only in case the predecessor transfers the business or trade or ownership thereof then the provision of the proviso is attracted. Therefore, it is not possible to uphold the action of respondent authority in calling upon the petitioner to discharge liabilities of Divya for the reasons stated hereinbefore. It is necessary to take note of the fact that no evidence has been placed on record to show that Divya has transferred its business or trade or ownership thereof in favour of the petitioner. The impugned letter dated 5th October, 2004 and notice of demand dated 19th November, 2004 issued by respondent No. 4 and 3 respectively are hereby quashed and set aside. The petition is accordingly allowed. Rule ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of Unauthorised Occupants) Act, 1972. In pursuance of the said letter GIDC took over possession on 4th January, 2001. 4. The petitioner applied to GIDC on 15th December, 2003 seeking allotment of plot in Sachin Industrial Estate. On 1st May, 2004 GIDC forwarded offer-cum-allotment letter to the petitioner. Thereafter, on 12th May, 2004 the petitioner made payment of the sum demanded by four different cheques as called upon by GIDC. Upon the payment having been received by GIDC an agreement in the nature of licence was entered into between GIDC, as licensor and the petitioner as licensee on 13th May, 2004. Thereafter, on 20th May, 2004 GIDC called upon the petitioner to take possession of the plot in question and accordingly possession was handed over by GIDC and taken over by the petitioner on 28th May, 2004 and in pursuance thereof possession receipt signed by Deputy Executive Engineer, Surat was issued to the petitioner. 5. It appears that on 31st August, 2004 respondent No. 4 wrote to the Regional Manager, GIDC not to dispose of or transfer the property belonging to M/s. Divya Prints Private Limited unless no objection certificate was issued by the office of respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Corporation. Therefore, according to him the principle of 'Buyer Beware' was applicable and the petitioner ought to have made appropriate inquiries before taking possession of the property from GIDC. That the petitioner was put on guard by the aforesaid paragraph of the offer-cum-allotment letter and hence the petitioner should not be heard to say that it was an innocent and bona fide purchaser without knowledge. That if the petitioner had made proper inquiries, the petitioner would have come to know that there were outstanding dues to be recovered by the Central Excise Department from Divya, and the petitioner having failed to make such inquiries, cannot now be permitted to deny the liability attached with the property. He therefore vehemently and repeatedly urged that the petitioner cannot be absolved of its liability to make payment of outstanding dues of Divya to the Central Excise Department. That the ratio of Supreme Court decision in case of Macson Marbles Pvt. Ltd. (supra) would squarely apply and the department was entitled to effect recovery of excise duty from the petitioner in light of provision of Section 11 of the Act. 8. There is no dispute as to the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also be attached and sold by such officer empowered by the Central Board of Excise and Customs, after obtaining written approval from the Commissioner of Central Excise, for the purposes of recovering such duty or other sums recoverable or due from such predecessor at the time of such transfer or otherwise disposal or change.] 10. On a plain reading of the provision as can be seen the main provision is in two parts. The first part pertains to making recovery of duty and any other sum payable to the Central Government from a person owing any money to the person from whom such sums may be recoverable or due which may be in his hands or under disposal of or control of the person owing such monies to the defaulter; the second part states recovery may also be effected by attachment and sale of excisable goods belonging to the defaulter; and lastly recovery can also be effected as if the amounts specified in the recovery certificates were arrears of land revenue. But the main thrust of the provision is effecting recovery from the defaulter or a person owing monies payable to the defaulter. Admittedly, in the present case the petitioner does not owe any monies payable to Divya, nor is it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name of Divya as far as the record of the office of respondent No. 3 is concerned; that the question was not whether the transaction was of lease or sale but whether dues recoverable from the predecessor can be recovered from the successor; and the question was of transferring the property belonging to the predecessor and not as to who is the transferor i.e. whether GIDC or State Financial Corporation. 14. Merely because Divya has shown its address in the office record of the respondents as per the location of the plot in question that by itself is not sufficient for the purpose of applying either provision of Section 11 or proviso thereunder. Similarly so far as the second reason is concerned if provisions of Section 11 of the Act are applicable viz. the requisite condition postulated by the provision stands fulfilled it would empower the respondent to effect recovery from the successor, but the question whether Divya is or is not predecessor of the petitioner has not been answered by the respondent authorities. As already seen hereinbefore, it is not possible to term the petitioner as successor of Divya. And lastly the stand of the Revenue that who is the transferor of the prope ..... X X X X Extracts X X X X X X X X Extracts X X X X
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