TaxTMI 
TaxTMI 
2016 (6) TMI 820
X X X X Extracts X X X X
X X X X Extracts X X X X
....machinery without the order in writing of the Assistant Commissioner of Customs and Central Excise. Facts, in brief, are that the immovable and movable assets of M/s. Bommidala Filaments Limited and M/s. Bommidala Purnaiah Tobacco Private Limited were subjected to auction by Exim Bank under the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short "the SARFAESI Act"), and a public notice of sale was issued. M/s. Polisetty Somasundaram (petitioner in W.P.No.14534 of 2015), a partnership firm, purchased the land, buildings and plant and machinery, of the defaulting companies, in the auction. A sale certificate was issued in their favour on 05.07.2013. Thereafter, M/s.P....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aram had purchased the subject plant and machinery in the auction sale conducted under the aegis of Export-Import Bank of India under the provisions of the SARFAESI Act, and a sale certificate was issued in their favour on 05.07.2013. On the other hand, Sri Gopala Krishna Gokhaley, learned Standing Counsel for the Central Excise Department, would submit that the auction notice requires the auction purchaser to ascertain whether there are central excise dues or not; it is evident, therefrom, that the property was transferred to the auction purchaser subject to payment of central excise dues; and as M/s.Polisetty Somasundaram had also purchased the lands and buildings of M/s.Bommidala Filaments Limited, they are liable to pay the central e....
X X X X Extracts X X X X
X X X X Extracts X X X X
....any conflict arises this aspect need not be examined. In this case no such conflict arises between the corporation and the Excise Department. Hence it is unnecessary to examine this aspect of the matter. The Department having initiated the proceedings under S.11A of this Act adjudicated liability of respondent No. 4 and held that respondent No. 4 is also liable to pay penalty in a sum of Rs. 3 lakhs while the Excise dues liable would be in the order of a lakh or so. It is difficult to conceive that the appellant had any opportunity to participate in the adjudication proceedings and contend against the levy of the penalty. Therefore, in the facts and circumstances of this case, we think if appropriate to direct that the said amount,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l position is concerned, UPFC being a secured creditor had priority over the excise dues. We further hold that since the appellant had not purchased the entire unit as a business, as per the statutory framework he was not liable for discharging the dues of the Excise Department....." (emphasis supplied) Under the proviso to Section 11 of the Act where the person, (predecessor from whom the duty or any other sums of any kind, as specified in this section), transfers or otherwise disposes of his business or trade in whole or in part, or effects any change in the ownership thereof, in consequence of which he is succeeded in such business or trade by any other person, all excisable goods, materials, preparations, plants, machineries, vessels....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... not, the correspondence, to which our attention is drawn, shows that Export-Import Bank of India had informed central excise officials, by letter dated 10.07.2013, that despite repeated reminders and requests to take possession of the finished goods lying in the premises of M/s.Bommidala Filaments Limited, the Central Excise Department had failed to take possession; Exim Bank had sold the assets charged to them through auction to the successful bidder; they had already transferred the assets to the successful bidder; as the finished goods are not charged to Exim Bank and Exim Bank is not an agent of the Customs and Central Excise Department, they were not bound to take responsibility of keeping the goods in its custody; and the Central Exc....