2016 (1) TMI 1008

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....y Instructions 2005". 4. Petitioner No.1 is a company registered under the Companies Act and is engaged in manufacturing of filters and filtration systems falling under Chapter 84 of First Schedule of Central Excise Tariff Act, 1985. The petitioner No.1-Company purchased land from M/s.Saj Bio Fules Pvt. Ltd. (herein after referred to as 'erstwhile owner') through a registered sale-deed dated 28.9.2011. 5. The petitioners applied online and obtained provisional registration under the Central Excise Act to carry out manufacturing activity at the site. The Department, however, on the premise that the erstwhile owner of the land had obtained central excise registration which was not canceled and had unpaid government dues of Rs. 8.50 lacs (rounded off), issued show cause notice to the petitioners on 4.9.2015 why the registration should not be canceled. One of the main grounds pressed in service was that the erstwhile owner had outstanding government dues of Rs. 8.39 lacs. It was also alleged that upon site inspection, the Excise Officers found that there was no plant or machinery available at the site for the purpose of production. Principally on these two grounds, petiti....

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....d unreported decision of this court in the case of Surat Metallics Ltd. (supra) and in the matter of M/s. Jahaan Steel Ltd. (supra) and decision in the case of Prelude Laminates Pvt. Ltd. in Special Civil Application No. 11619 of 2000. In the case of TATA Metalinks Ltd. (supra), Bombay High Court has distinguished the decision of the Bombay High Court in the case of Manibhadra Processors (supra), the decision relied upon by the learned counsel appearing on behalf of the respondents and the Bombay High Court in the case of TATA Metalinks Ltd. (supra) in para 5 and 6 has considered and dealt with in extenso Section 6 of the Central Excise Act and Rule 9 of the Central Excise Rules, by observing in para 5 and 6 as under :- We shall first consider the issues in Writ Petition No. 759 of 2006 in the matter of registration of the establishment of the Petitioners. Section 6 of the Central Excise Act reads as under: 6. Registration of certain persons - Any prescribed person who is engaged in - (a) the production of manufacture or any process of production or manufacture of any specified goods included in the First Schedule and the Second Schedule to the C....

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..... (Emphasis supplied) (d) Every registered person, who ceases to carry on the operation for which he is registered, shall de-register himself by making a declaration in the form specified in Annexure III and depositing his registration certificate with the Superintendent of Central Excise. These are some of the requirements as set out under the rules. A combined reading therefore, of Section 6 of the Act read with Rule 9 as also the notification shows that the registration must be by the "Person". Our attention is however, invited to the judgment of this Court in Manibhadra Processors v. Additional Commissioner of C. Ex.0 2005 (184) 13 (Bom.) to contend that if there be an earlier holder of the registration certificate who has not paid the outstanding excise duties and fails to surrender registration certificate with respect to the same factory premises, no other unit in the same premises can be registered under the Rules unless earlier registration is deregistered or cancelled or surrendered by such registrant and all excise dues are cleared. On behalf of the Revenue, the learned Counsel has relied on this judgment to contend that in th....

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....tempt to evade tax dues and it is in these circumstances that the court was pleased to take the view which it has is taken. The person who owned the premises was the same but was inducting various licencees who had defaulted in payment of their dues. The judgment will have to be restricted to the facts of that case. 26. The Division Bench of this Court in the case of Surat Metallics Ltd. (supra) had an occasion to consider the similar issue with respect to nonissuance of Registration Certificate in favour of subsequent purchaser and had occasion to consider the decision of the Bombay High Court in the case of TATA Metalinks Ltd. (supra) and the Division Bench in the case of Surat Metallics Ltd. (supra) in para 28 and 29 has observed and held as under :- Though not expressly stated in the order refusing registration, before the Court, on behalf of the respondent No.1, it has been contended that premises can be registered under the Central Excise Act only in relation to one person; that the defaulter M/s. Veenutex Dyeing & Printing Mills Pvt. Ltd. having already been registered in relation to the subject premises, unless such registration is revoked and cancelled, r....

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....would require registration certificate for each of such premises. In other words, it is the person who has to obtain separate registration certificate for each of the said premises. It is open to a person who has ceased to carry on the business to apply for deregistration. Would that mean in the absence of the person who has closed or sold the business or premises, applying for deregistration, there is no jurisdiction to grant another person registration of the premises as in the case of a bona fide transferee for value or for that to the owner of the premises whose lessee has defaulted in payment of excise dues. Section 6 and Rule 9 and the notification contemplates that it is the person who must be registered. Neither Section 6 nor Rule 9 and the Notification is a provision for enforcing the claim for dues of the department. That is contained in different provisions. An immovable property by itself cannot be sold unless the owner of the premises is defaulter and that too under a certificate as arrears of land revenue. That sale would be subject to the priority of claims. In case of a lease hold property given for a particular period, there would be no question of sale of the prop....