TaxTMI 
TaxTMI 
2024 (2) TMI 322
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....al Creditor is superior to the rights under the Customs Act, 1962 and therefore, the Petitioner may be pleased to complete the process of recovery of dues for the sum of Rs. 7.44 crores payable by the Respondent No. 02 under the provisions of the SARFAESI Act, 2002. c. That the Hon'ble Court be pleased to direct the Respondent No. 1 to disclose the status of the investigation to the Petitioner for completing proceeding for sale of assets of Respondent No. 02 under the provisions of the SARFAESI Act 2002; d. That the Hon'ble Court be pleased to direct the Respondent No. 01 to provide the details of the attachment of property, if any, of the Respondent No. 02. e. This Hon'ble Court be pleased to restrain the Respondent No. 01 to not attach the properties of Respondent No. 2 bearing Residential Flats 1, 2, 3, 4, 5, 6, 7, 8 consisting of Three 2BHK and Five 1 BHK flats in the building known as Park View, Plot No. 205, Village Murbi, Sector 19, Kharghar, Navi Mumbai and Residential Flat 112 in Om Rachana, Plot No. 03, Sector 17, Vashi, Navi Mumbai, as the same has been mortgaged in favour of Petitioner by the Respondent No. 02." 3. The case of the petitione....
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....ount number are as mentioned in the table below: S. No. Name of the Person / Firm (Account holder) Account Number 1. Rajendra Vitthal Shinde 000068009882646 2. M/s. R. S. Enterprises 60094982251 3. M/s. R. S. Enterprises 60108738405 4. M/s. V. S. Corporation 60102756645 5. M/s. Arowana Exports 60102759464 6. M/s. Arowana Exports 60117102551 7. M/s. R. S. Distributor 60102758712 8. M/s. R. S. Realty 60102758382 9. M/s. R. S. Automibles 60102759045 3. Investigations have indicated smuggling of huge quantities of Red Sanders in the past and this unit is at present conducting financial investigations to establish the extend of crime proceeds which have been layered and integrated into the other legal business being carried out by Rajendra Vitthal Shinde and his associates. Prima facie, there also appears to be a serious case of money laundering which will be investigated by the competent authorities. 4. Investigations have further revealed that huge amount of loans have been sanctioned to the firms controlled by Rajendra Vitthal Shinde. 5. As the investigations are in pr....
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....ned Counsel for respondent No. 1 would not dispute the tenor of the letter dated 2 November 2015. He submits that as set out in the said letter, the investigation was in progress, which was in respect of not only respondent No. 2 but also the other entities as set out in the impugned letter. 8. Having heard learned Counsel for the parties and having perused the record, in our opinion, there is much substance in the contention as urged on behalf of the petitioner. The only source of power for the respondents in purporting to address the impugned letter can be traced to Section 142A of the Customs Act, being a provision which recognizes the first charge in regard to any duty, penalty, interest or any other sum payable by an assessee or any other person under the Customs Act and such first charge is notwithstanding anything to the contrary contained in any Central Act or State Act, and thereafter, saving the provisions under the SARFAESI Act. Section 142A of the Customs Act reads thus:- 142A. Liability under Act to be first charge. Notwithstanding anything to the contrary contained in any Central Act or State Act, any amount of duty, penalty, interest or any other....
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....bservations: 5. ... ... ... .. .. ..The overriding effect of section 142A as regards the duty, penalty and interest under the Customs Act, 1962 is subject to the Central Act, State Acts provided in this section itself, which includes the SARFAESI Act. Therefore, the claim of Respondent-Custom Authorities for the overriding charge under section 142A of the Customs Act, 1962 itself makes an exception in respect of the SARFAESI Act. Therefore, learned counsel for the Petitioner is right in contending that the Petitioner would have the overriding priority over the charge of Respondent- Custom Authorities. 6. Learned counsel for the Respondent-Custom Authorities submits that though the Petitioner would have priority, it does not mean the Respondent-Custom Authorities have no claim at all against the property in question and the Petitioner should be subjected to the conditions if the Petitioner is proceeding to take measures under the SARFAESI Act to sell the property in question, so that, if any amount is balance over and above the claim of Petitioner, the other parties who may have claims, such as the Respondent-Custom Authorities, would not be prejudiced. 8.....