Custom, Excise & Service Tax Tribunal
Cce Nashik vs Jain Irrigation Systems Ltd. on 9 March, 2022
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
MUMBAI
REGIONAL BENCH
Excise Appeal No. 1296 of 2012
(Arising out of Order-in-Appeal No. AKP/NSK/83/2012 dated 28.05.2012 passed by
the Commissioner of Central Excise & Customs (Appeals), Nasik.)
Commissioner of Central Excise, Nashik ........Appellant
Kendriya Rajaswa Bhavan,
Gadkari Chowk, Nasik - 422 002
VERSUS
M/s. Jain Irrigation Systems Ltd. ........Respondent
Gat No. 118, 122, Natinal
Highway No. 06, Eklangna - Village,
Tal.- Dharangaon, Dist.-Jalgaon,
Pin No.- 425 001
APPERANCE:
Ms. Anuradha Parab, Assistant Commissioner, Authorised Representative
for the Appellant
Ms. Padmavati Patil, Advocate for the Respondent
CORAM:
HON'BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL)
HON'BLE DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL)
FINAL ORDER NO. A/85208 / 2022
Date of Hearing: 09.03.2022
Date of Decision: 09.03.2022
PER: DR. SUVENDU KUMAR PATI
Refusal by the Adjudicating Authority to grant registration to
the Respondent on the ground that its company is operating on the
premises of another company who had outstanding Central Excise
dues, that has been set aside by the Commissioner (Appeals) vide
his above noted order, is assailed by the Revenue-Department in this
appeal.
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2. We have heard submissions from both the sides.
3. Facts of the case, as can be inferred from the appeal memo
and response from the opponent, is that the land over which
Respondent's company has been set up was taken into possession by
the Tahsildar at the instance of the Central Excise & Customs
Department for recovery of outstanding dues of the Appellant-
Department to the tune of Rs.28,60,00,000/- against its previous
owner, for which registration was denied to the Respondent who
purchased the same factory and building situated in the previously
owned land of M/s Maniyar Plast Ltd. through the process of official
liquidation invoked under SARFAESI Act, 2002.
4. During the course of argument, learned Authorised
Representative for the Appellant-Department submitted that the
tender document at para 2.7 clearly indicated that outstanding dues
are the responsibility of purchaser who shall meet the same over and
above the purchased consideration amount and as Rule 9 of the
Central Excise Rules, 2002 clearly indicates that two registration
certificates cannot be issued for one and the same premises and
since the same premises had already been registration with M/s
Maniyar Plast Ltd. and has not yet been cancelled/revoked in the
absence of any such request for cancellation or revocation, it cannot
be registered in the Respondent's name, for which order passed by
the learned Commissioner (Appeals) is required to be set aside.
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5. In response to such submissions, learned Counsel for the
Respondent Ms. Padmavati Patil submitted that the Respondent had
purchased the assets from official liquidator of the previous company
namely M/s Maniyar Plast Ltd. and based on the direction of the
Hon'ble Bombay High Court only arrears of land related revenue
were to be borne by the Purchaser-Respondent and therefore
outstanding amount of the previous owner cannot be realised from
the Respondent. In submitting case laws of the Hon'ble Supreme
Court decided on 24.02.2022 in the case of Punjab National Bank
(2022 SCC OnLine SC 227), she also argued that government dues
would not have priority over secured creditors i.e. bank and in the
instant case it is at the instance of bank under SARFAESI Act 2002,
official liquidator effected the liquidation process basing on the
direction of the Hon'ble Bombay High Court and the same activity
under liquidation process cannot be equated with "sale of business"
to invoked proviso to Section 11, for which dues cannot be recovered
from the purchaser and therefore interference by the CESTAT in the
order passed by the Commissioner (Appeals) is uncalled for.
6. Perused the case record. It is observed that several
documents including request for release of BOZA to the Tahasildar
made by the Superintendent of Central Excise & Customs on
02.06.2015 and official liquidator letter dated 10.03.2020 photo
copies are produced by the Respondent to substantiate that only
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arrears of land related revenue were to be borne by the Respondent-
Purchaser, for which no other dues can be recovered from the
Purchaser. These are the documents procured subsequent to filing of
the appeal in CESTAT but the dispute is unrelated to the recovery of
old dues. Here what is required to be determined is whether
appellant was eligible to get registration of its factory and premises
after liquidation process had been completed against the previous
title holder of the property?
7. First and foremost point to be considered is that whether Rule
9 prohibits issue of two registration certificates for one and the same
premises that formed the basis of the adjudication order? On a bare
reading of Rule 9 no such prohibition is apparent. Moreover, a
company that had under gone a process of liquidation is deemed to
be non-existent for which waiting for a request from the said
company to deregister it is irrelevant and is not dependent on
subsequent registration of any company functioning from the said
premises, existence of which remained undisputed in view of its
acquirement of right, title and interest over the property through an
official liquidation apparently in an auction process that was done in
compliance to the order passed by the Hon'ble Bombay High Court
and in view of the fact that carrying out business over the said
property including filing of its return before all competent authorities
bear testimony to the fact that appellant is the rightful owner of the
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said property, it is entitled to get a registration for its business
activities carried out from the premises in question. Hence the order.
ORDER
8. The appeal is dismissed and the order passed by the Commissioner of Central Excise & Customs (Appeals), Nasik vide Order-in-Appeal No. AKP/NSK/83/2012 dated 28.05.2012 is hereby confirmed.
(Pronounced in open court) (Dr. Suvendu Kumar Pati) Member (Judicial) (Sanjiv Srivastava) Member (Technical) Prasad