TaxTMI 
TaxTMI 
TaxTMI 
2019 (2) TMI 1559
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....earned advocate for the respondent fairly agreed and hence, at the request of learned counsel for the petitioner with concurrence of learned advocate for the respondent, the matter was takenup for final disposal. 3. Rule. Shri Desai, learned advocate waives service of notice of rule on behalf of the respondent no.2. By consent of the learned counsels for the parties, rule is fixed forthwith. 4. The petitioner by way of this petition under Article 226 of the Constitution of India has approached this Court with following prayers. "A. Your Lordships be pleased to issue a writ of certiorari or in the nature of certiorari or writ of mandamus or in the nature of mandamus or any other appropriate writ or order quashing and setting aside the ma....
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.... what is essentially under challenge is an attempt and coercive action on the part of the respondents in seeking recovery of the excise dues of one M/s. Shri Ganesh Mahadev Dyeing Mills, a partnership firm whom from the petitioner purchased the property along with the construction and machinery thereon under the Sale Deed dated 7th September 2007 and obtained possession on 1st June 2006, on the specious ground that the petitioner would not liable to make good the excise departmental outstanding under the provisions of Section11 of the Central Excise Act, 1944 (hereinafter referred to as "the Act" for the sake of brevity) as petitioner was perceived to be successor of the erstwhile owner of the property, which as per the petitioner was wholl....
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....the petitioner firm in November2017. In reply to that letter, the petitioner vide its letter dated 28th November 2017 informed the Superintendent of CGST and Central Excise, RangeII, DivisionV, Surat Commissionerate that at the time of purchasing the industrial plot/shed from Shri Ganesh Mahadev Dyeing and Printing Mills by the Petitioner firm, no recovery of dues was pending from the seller. In May 2018, the bankers of the petitioner firm - HDFC Bank, informed the petitioners that there is a lien on industrial shed of the petitioner firm hypothecated to the bank. Immediately, the partner of the petitioner firm approached the Superintendent of CGST and Central Excise, RangeII, DivisionV, Surat Commissionerate for the details. 5.4 A certifi....
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....e concerned authority appears to have misconceived the said provision only for seeking recovery from the petitioner, where there exists no basis whatsoever for effecting the same. 7. Learned counsel for the petitioner contended that the petitioner purchased the property after taking the possession of the property on 1st June 2006 by executing a registered sale deed dated 7th September 2007 and the requisite mutation was also carriedout under the revenue record right on 22nd July 2008. Since then, the mutation entry in respect of subject property indicates that the petitioner is the sole owner and proprietor of the property in question in place of the erstwhile owner and on that basis, the petitioner also could avail the financial assistanc....
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....ing incorrect statement, the department was justified in perceiving the petitioner's liability to make it good by invoking the provision of Section11 of the Act. 11. Shri Desai Learned advocate for the revenue further submitted that the averments made in the Sale Deed and reading the same along with the provision of Section11 may persuade this Court to appreciate the department's view and action, which was bonafidely taken for recovering the Government dues. 12. Shri Desai, learned advocate for the revenue when calledupon to indicate as to how in absence of any specific provision qua the successor owner of the property being made liable to pay the excise dues of the erstwhile owner of the property, he could not reply to this query....
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....trictions or charge placed by the department and the property was in fact free from such kind of charge from excise department and therefore, it was not open to the department to invoke provision of Section11 to rope in the subsequent purchaser of the property by misconceiving it to be a purchase of business so as to attribute the petitioner successor only for the purpose of invoking Section11, which unfortunately has not been established by the petitioner in the present petition. The close perusal of the affidavitinreply also clearly indicates that in absence of such an attempt, Section11 of the Act and its invocation cannot justify any demand from the petitioner or the dues of the erstwhile owner of the property. 14. As a result thereof,....