IN THE GAUHATI HIGH COURT

Transcription

1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM; NAGALAND; MIZORAM AND ARUNACHAL PRADESH) Petitioners : WP(C) No.3049 of M/s. Bogidhola Tea and Trading Co. Pvt. Ltd. having its registered office at Bogidhola T.E., O.O. Letekujan in the district of Golaghat, Assam and its Administrative Head Office at Parag Bhawan, 4 th Floor, Ulubari, G.S.Road, Guwahati-7, Assam 2. Shri Pravir Kumar Roy, S/o (L) S.N.Roy, resident of Bogidhola T.E., P.O. Letekujan, in the district of Golaghat, Assam and is the Executive Director of M/s Bogidhola Tea and Trading Co. Pvt. Ltd. Golaghat. 3. Shri Sachindra Kumar Jha, S/o (L) Bholanath Jha, resident of House No.9, SBI Colony, Sarumatoria, Dispur. Respondents :- -Versus - 1. The Union of India through the Secretary to the Government of India, Ministry of Finance, New Delhi 2. The Commissioner of Central Excise, Morellow Compound, Shillong. 3. The Deputy Commissioner of Central Excise, Nagaon. Petitioners : WP(C) No.3139 of M/s. Raj (Assam) Agro & Tea (P) Ltd. Mithapukhuri Road, Jorhat , Assam Represented by its Managing Director Sri R.K.Gupta Page 1 of 13

2 2. Shri R.K.Gupta, Managing Director, M/s. Raj (Assam) Agro & Tea Pvt. Ltd. Mithapukhuri Road, Jorhat Respondents :- -Versus - 1. The Union of India Through the Secretary to the Government of India, Ministry of Finance, New Delhi 2. The Commissioner of Central Excise, Morellow Compound, Shillong. 3. The Additional Commissioner of Central Excise, Hqrs. Anti-Evasion Unit, 4 th Floor, Udyog Vikash Bhawan, Bhangagarh, Guwahati The Superintendent, Central Excise,(Anti-Evasion), Guwahati 5. M/s. Bogidhola Tea and Trading Co. Pvt. Ltd. Nagaon, represented by its Managing Director, Sri PK Roy WP(C) No. 142 of 2005 Petitioners : 1. M/s. Raj (Assam) Agro & Tea (P) Ltd. Mithapukhuri Road, Jorhat , Assam Represented by its Managing Director Sri R.K.Gupta 2. Shri R.K.Gupta, Managing Director, M/s. Raj (Assam) Agro & Tea Pvt. Ltd. Mithapukhuri Road, Jorhat M/s. Paramount Tea Marketing (P) Ltd. A Company having its registered office at 11, Park Mansions, 57, Part Street, Calcutta , Branch office at Deka Premises, 3 rd Floor, Christian Basti, G.S.Road, Guwahati Represented by its Joint Managing Director, Mr. B.K.Mahanta, Deka Premises, Page 2 of 13

3 Christian Basti, GS Road, Guwahati Mr. B.K.Mahanta, Joint Managing Director, Paramount Tea Marketing (P) Ltd. Deka Premises, Christian Basti, GS Road, Guwahati Assam Respondents :- -Versus - 1. The Union of India Through the Secretary to the Government of India, Ministry of Finance, New Delhi 2. The Commissioner of Central Excise, Morellow Compound, Shillong. 3. The Additional Commissioner of Central Excise, Hqrs. Anti-Evasion Unit, 4 th Floor, Udyog Vikash Bhawan, Bhangagarh, Guwahati The Superintendent, Central Excise, (Anti-Evasion), Guwahati. 5. M/s. Bogidhola Tea and Trading Co. Pvt. Ltd. Nagaon, represented by its Managing Director, Sri P.K. Roy B E F O R E HON BLE MR. JUSTICE ABHAY MANOHAR SAPRE, THE CHIEF JUSTICE HON BLE MR. JUSTICE UJJAL BHUYAN For the petitioners : For the respondents: Mr. AM Buzarbaruah,Adv. Ms. Deb, Adv. Mr. DC Chakraborty, Mr. R Dubey,Advs Date of hearing : 18 th June, 2014 Date of judgment : June, 2014 Page 3 of 13

4 JUDGMENT & ORDER (CAV) (A.M. Sapre, CJ) The decision rendered in this writ petition shall also govern the disposal of other two writ petitions being WP(C) No.3139/2006 and WP(C) No.142/2005 because all the three writ petitions involve common questions of law and fact and arise out of one controversy. By filing this writ petition under Article 226/227 of the Constitution of India, the writ petitioners seek to challenge the attachment order dated (Annexure- 4) and detention order dated (Annexure - 6) issued by Deputy Commissioner of Central Excise, Nagaon ( Respondent No.3 ) under the provisions of Central Excise Act read with Customs Act. Facts of the case lie in a narrow compass. They however need mention in brief. The writ petitioner is a Private Limited Company registered under the provisions of Companies Act. It was engaged at all relevant time in the business of manufacture and sale of tea. The petitioners own their tea garden/factory which is located at Letekujan, District Golaghat in State of Assam. Tea is an excisable commodity and therefore subjected to payment of Central Excise under the Central Excise Act. During the period April 2003 to February 2005, the writ petitioner was liable to pay a total sum of Rs. 8,86,885 by way of Central Excise Duty on the tea manufactured by them. Since the petitioner failed to pay the Duty, the Deputy Commissioner of Central Excise, Nagaon (Respondent No.3) issued demand notice followed by attachment and detention orders whereby the goods (tea) were detained and attached for realization of the duty amounting to Rs.8,86,885 and Rs.9,77,358 towards interest, total Rs.18,64,243. The petitioner felt aggrieved of this Page 4 of 13

5 demand followed by attachment/detention orders filed this writ petition under Article 226/227 of the Constitution of India and questioned its legality and correctness. So far as other two writ petitioners of WP(C)No.3139/2006 and WP(C) No.142/2005 were concerned, their case was that they were the lessees of the original owner of the tea garden/factory i.e., writ petitioner of WP(C) No of 2006 and were placed in possession of tea garden/factory pursuant to lease agreement executed between them and the lessor (Annexure-1) for consideration and for some period as stipulated in the lease agreement. According to them, they were placed in possession of the tea garden much after the period for which the impugned demand was issued and hence no recovery could be made of the alleged outstanding central excise dues from them (lessee) and nor the tea manufactured by them from the tea garden/factory could be attached/detained. It was their case that firstly, lessees were the owners of the tea and secondly, they had already paid the Central Excise Duty on the said tea manufactured by them and hence it could not have been attached for realisation of the dues of their lessor. In other words, their contention was that since the impugned dues relate to the period prior to their lease agreement and hence it could be recovered only from their lessor being the defaulter. The respondent defended the demand by filing the return. They contended that the impugned demand was rightly issued on the strength of Section 11 of the Central Excise Act read with Section 142 of the Customs Act. It was contended that these two Sections empowers the Department to make recovery of the dues from the three writ petitioners by taking recourse to the machinery provisions provided in both the Acts for detention/attachment and sale of the detained/attached goods. Heard Mr. AM Buzarbaruah and Ms. Deb, learned counsel for the petitioner and Mr. DC Chakraborty and Mr. R Dubey, learned counsel for the respondents. Page 5 of 13

6 We also perused the written submissions filed by the counsel for the petitioner after closure of the case. Learned Counsel for the petitioners while assailing the impugned orders of attachment/detention contended that since it was not issued by the Commissioner of Central Excise and hence it was bad in law. According to them, an order of detention/attachment could be issued only by the Commissioner of Central Excise under Section 142 of the Customs Act and not by any other authority other than the Commissioner. To say the least, the submission is untenable. In the first place, this objection was not raised by the petitioners in their writ petitions because we do not find any ground in the writ petitions. Secondly, even assuming that it could be raised being a pure question of law as urged by the learned counsel for the petitioners, yet, in our opinion, it has no merit. It is for the reason that perusal of impugned orders would indicate that they were issued on the basis of the earlier order passed by the Joint Commissioner (see Annexure 3 at page 26 of WP(C) No. 142 of 2005). So the demand in question was issued on the basis of the earlier order passed by the Joint Commissioner and not by the officer who signed the impugned order. That apart Section 2 ( b) of the Central Excise Act which defines the expression Central Excise Officer includes Chief Commissioner of Central Excise, Commissioner of Central Excise, Commissioner of Central Excise (Appeals), Additional Commissioner of Central Excise, Deputy Commissioner of Central Excise, Assistant Commissioner of Central or any other officer of the Central Excise Department, or any person (including an officer of the State Government) invested by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) with any of the powers of a Central Excise Officer under this Act. The names of officers who have signed the attachment/detention orders find place in the definition of Central Excise Officer and therefore they were empowered to issue the impugned orders. Page 6 of 13

7 So far as the power to issue the attachment/detention order for realization of dues was concerned, once the provisions relating to detention/attachment contained in the Customs Act are made applicable for recovery of the dues under the Central Excise Act by virtue of a notification issued in this behalf then in our view, all the provisions of Central Excise Act including Section 2 (b) would apply to the case in hand. That apart, Section 11 of the Central Excise Act read with Section 142 of the Customs Act is a complete answer to the argument of the learned counsel for the petitioners. Section 11 of the Central Excise Act reds as under: SECTION 11. Recovery of sums due to Government. In respect of duty and any other sums of any kind payable to the Central Government under any of the provisions of this Act or of the rules made thereunder including the amount required to be paid to the credit of the Central Government under Section 11D, the officer empowered by the [Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963)] to levy such duty or require the payment of such sums may deduct the amount so payable from any money owing to the person from whom such sums may be recoverable or due which may be in his hands or under his disposal or control, or may recover the amount by attachment and sale of excisable goods belonging to such person; and if the amount payable is not so recovered, he may prepare a certificate signed by him specifying the amount due from the person liable to pay the same and send it to the Collector of the district in which such person resides or conducts his business and the said Collector, on receipt of such certificate, shall proceed to recover from the said person the amount Page 7 of 13

8 specified therein as if it were an arrear of land revenue. [Provided that where the person (hereinafter referred to as predecessor) from whom the duty or any other sums of any kind, as specified in this section, is recoverable or due, 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, utensils, implements and articles in the custody or possession of the person so succeeding may also be attached and sold by such officer empowered by the Central Board of Excise and Customs, after obtaining written approval from the Commissioner of Central Excise, for the purposes of recovering such duty or other sums recoverable or due from such predecessor at the time of such transfer or otherwise disposal or change.] Section 142 of Customs Act reads as under: 142. Recovery of sums due to Government. (1) [Where any sum payable by any person] under this Act [including the amount required to be paid to the credit of the Central Government under Section 28B] is not paid,- (a) the proper officer may deduct or may require any other officer of customs to deduct the amount so payable from any money owing to such person which may be under the control of the proper officer or such other officer of customs; or (b) the [Assistant Commissioner of Customs or Deputy Commissioner of Customs] may recover or may require any other officer of customs to recover the Page 8 of 13

9 amount so payable by detaining and selling any goods belonging to such person which are under the control of the [Assistant Commissioner of Customs or Deputy Commissioner of Customs] or such other officer of customs; or (c) if the amount cannot be recovered from such person in the manner provided in clause (a) or clause (b)- (i) the [Assistant Commissioner of Customs or Deputy Commissioner of Customs] may prepare a certificate signed by him specifying the amount due from such person and send it to the Collector of the district in which such person owns any property or resides or carries on his business and the said Collector on receipt of such certificate shall proceed to recover from the said person the amount specified thereunder as if it were an arrear of land revenue; or (ii) the proper officer may, on an authorization by a Commissioner of Customs and in accordance with the rules made in this behalf, detain any movable or immovable property belonging to or under the control of such person, and detain the same until the amount payable is paid; and in case, any part of the said amount payable or of the cost of the distress of keeping of the property, remains unpaid for a period of thirty days next after any such distress, may cause the said property to be sold and with the proceeds of such sale, may satisfy the amount payable and the costs including cost of sale remaining unpaid and shall render the surplus, if any, to such person]: Page 9 of 13

10 [provided that where the person (hereinafter referred to as predecessor), by whom any sum payable under this Act including the amount required to be paid to the credit of the Central Government under Section 28B is not paid, 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 goods, materials, preparations, plans, machineries, vessels, utensils, implements and articles in the custody or possessions of the person so succeeding may also be attached and sold by the proper officer, after obtaining written approval from the Commissioner of Customs, for the purposes of recovering the amount so payable by such predecessor at the time of such transfer or otherwise disposal or change. [(d)(i) the proper officer may, by a notice in writing, require any other person from whom money is due to such person or may become due to such person or who holds or may subsequently hold money for or on account of such person, to pay to the credit of the Central Government either forthwith upon the money becoming due or being held, or at or within the time specified in the notice not being before the money becomes due or is held, so much of the money as is sufficient to pay the amount due from such person or the whole of the money when it is equal to or less than that amount; (ii) every person to whom the notice is issued under this section shall be bound to comply with such notice, and in particular, where any such notice is issued to a post Page 10 of 13

11 office, banking company or an insurer, it shall not be necessary to produce any pass book, deposit receipt, policy or any other document for the purpose of any entry, endorsement or the like being made before the payment is made, notwithstanding any rule, practice or requirement to the contrary; (iii) in case the person to whom a notice under this section has been issued, fails to make the payment in pursuance thereof to the Central Government, he shall be deemed to be a defaulter in respect of the amount specified in the notice and all the consequences of this Chapter shall follow.] (2) Where the terms of any bond or other instrument executed under this Act or any rules or regulations made thereunder provide that any amount due under such instrument may be recovered in the manner laid down in sub-section (1) the amount may, without prejudice to any other mode of recovery, be recovered in accordance with the provisions of that sub-section. Section 11 read with Section 142 would go to show that these 2 Sections invest the authorities to raise the demand and also to issue the attachment/detention orders to detain the goods belonging to the defaulting assessee including his transferee who stepped into his shoes to carry on the business either by purchasing the said business or otherwise. The petitioners then in their written submission contended that on the basis of interim order passed in the case the amount mentioned in the demand has been recovered by the Department and hence it cannot be now recovered from any of the petitioners and specially from the petitioner of WP(C) No.3049/2006 i.e. defaulting assessee. If that is the argument, Page 11 of 13

12 then it is for the petitioner to satisfy the authorities that how, when and in what manner they or any of the writ petitioners satisfied the impugned demand or/and how, when and in what manner, the authorities recovered the entire dues from any of the writ petitioners. In this bunch of petitions, no documents have been filed to show that impugned demand has already been satisfied and if so, in what manner. Since we have upheld the demand as also the attachment/detention orders impugned in these writ petitions, we are not inclined to grant any indulgence to the writ petitioners to file any appeal or revision under the Central Excise Act against the impugned demand. It would now be a futile exercise on the part of the petitioners because these writ petitions were admitted for hearing in 2006 and pending since then with stay operating of the demand in petitioners favour. Even otherwise, we do not find that the matter involve any disputed question of facts requiring appellate authority to examine the factual matrix in its appellate jurisdiction. Learned counsel for the petitioners however did not challenge the quantum of dues demanded. In the light of this, we need not examine this issue and accordingly uphold the impugned demand, attachment and detention orders impugned in these writ petitions. In the light of foregoing discussion, we are of the considered view that neither the petition filed by the defaulting assessee i.e. WP(C) No.3049/2006 and nor the ones filed by the alleged lessees of defaulting assessee i.e. WP(C) No.3139/2006 and WP(C) No.142/2005 has any merit. As stated above, liberty is granted to writ petitioners to file conclusive proof before the competent recovering authorities to show that the petitioners have satisfied the impugned demand and made payment of Rs.18,64,243. We however clarify this issue and make it clear that the petitioners will have to show that they have paid the amount of Rs.18,64,243, and not any demand relating to other period or/and liability. Page 12 of 13

13 In view of foregoing discussion and subject to aforesaid liberty, we find no merit in these writ petitions, which, thus, fails and are dismissed. As a consequence, all interim orders are hereby recalled/vacated. No cost. JUDGE CHIEF JUSTICE Skd/ Page 13 of 13