V. BINU Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) This writ petition is filed by the petitioner seeking to quash Ext.P1 notice issued to the petitioner by the 2nd respondent, i.e., the Assistant Commissioner of Central Excise, Palakkad, dated 22.l1.2010, whereby informed the petitioner that his father i.e., the 3rd respondent is liable to pay an amount of Rs.86,94,126/- towards duty and Rs.86,94,126/- towards penalty, on account of the business conducted by the 3rd respondent, and further that the said person is not paying the amounts specified in the notice, the Department is proposing to proceed to attach the property mentioned in the said notice under the provisions of Sec.142(1) (c)(ii) of the Customs Act , 1962, read with Rule 4 of the Customs (Attachment of property of Defaulters for recovery of Customs Dues) Rules, 1995, as is made applicable to Central Excise matters by notification No.68/63-CE dated 04.05.1963, since the defaulter has transferred the property to the petitioner as per Document No.1436/2001 of SRO, Palakkad, and for other related reliefs. Brief material facts for the disposal of the writ petition are as follows:

(2.) Petitioner was assigned an extent of 11 cents of property with a residential house thereon by his father, the 3rd respondent, in the year 2001. Later, the business of the 3rd respondent ran into rough weather due to the strike that has occurred in the establishment and had to be closed down, thereby virtually rendering the 3rd respondent physically and financially unable to pay any amounts to the respondents. Matters beings so, petitioner is served with Ext.P1 notice by the 2nd respondent as per the provisions specified above, seeking to attach and sell his property to recover the dues of the 3rd respondent under the Central Excise Act . Similarly, Ext.P2 notice is issued to the 3rd respondent, directing the 3rd respondent to pay the afore-specified amounts within 7 days, failing which, proceedings will be initiated in order to recover the amounts in accordance with law.

(3.) The contention put forth by the petitioner is that, the provisions of Sec.142(1)(c)(ii) of the Customs Act , and Rule 9 of the Rules specified above are not applicable, to recover the dues under the Central Excise Act , and Sec.12 of the Central Excise Act does not empower the Central Government to adopt the above provisions of the Customs Act and the Rules to a proceeding under the Central Excise Act . Thus the notification issued by the Central Government to the extent to which it incorporates Sec.142(1)(b) and Sec.142(1)(c)(ii) of the Customs Act as applicable to proceedings under the Central Excise Act is void and beyond the powers conferred under Sec.12 of the Central Excise Act. Moreover, it is alternatively contended that, even if the above provisions are applicable, the property was obtained by the petitioner nearly 10 years ago, and therefore, cannot be proceeded against, in view of the fact that the transfer of the property to the petitioner is long prior to the notice issued to the 3rd respondent under Rule 4 of the Rules specified above.