THIRD MEMBER ON REFERENCE : SHRI M.V. RAVINDRAN, MEMBER (J) RAJABALI ISMAIL RAJBARA Vs. COMMISSIONER OF CENTRAL EXCISE, SURAT

JUDGEMENT

(1.) SHRI Rajabali Ismail Rajbara is aggrieved by the impugned order whereby the attachment of land and building belong to him has been confirmed for recovery of arrears of excise duties. The land and building in question had been leased out to one M/s. Bhavya Apparels Pvt. Ltd. 100% EOU (Bhavya). Bhavya failed to pay total amount of Rs. 35,94,63,666/ - constituting duty, penalty and redemption fine etc. and the dues have attained finality since appeal filed by Bhavya before the Tribunal was rejected because of non -compliance with the requirement of pre -deposit ordered by the Tribunal. The land and building was leased from 21 -9 -1999 to 20 -9 -2005 vide lease deed dated 21 -9 -1999. However it was submitted by the appellant that Bhavya disappeared in the year 2000 -2001 after vacating the leased land and building without informing the appellant and without clearing past unpaid lease rent also. The attachment has been made under the provisions of Section 142(1)(c)(ii) of Customs Act, 1962 made applicable to central excise matters by notification issued under Section 12 of Central Excise Act, 1944.

(2.) HEARD both the sides.

(3.) THE learned advocate submitted that Section 11 of Central Excise Act, 1944 (The Act) relates to recovery of sums due to Government. A proviso was introduced with effect from 10 -9 -2004 which provided for attachment of all excisable goods, materials, plants, machineries, vessels, utilities, implements and articles in the custody or possession of the person who had succeeded the assessee because of transfer, disposal or change in ownership. It was submitted that this section would not be applicable for recovery in view of the fact that the proviso came into effect from 10 -9 -2004 whereas the arrears had arisen before 2002 -2003 against Bhavya. He also cited several decisions in support of this contention. However as rightly observed by the Commissioner in his order, the proceedings to attach the property are in terms of Section 142 of the Customs Act, 1962 and therefore these submissions are not relevant. In any case Section 11 does not provide for attachment of land and building.