1 WP-5596.11.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5596 OF 2011 The Commissioner of Central Excise and anr. : Petitioners versus M/s. Tungabhadra Holdings Pvt. Ltd. : Respondent. Mr. A S Rao and Mr. S D Bhosale for the Petitioners. Mr. Rahul Narichania with Mr. Rajeev Ravi i/by Mr. P K Shetty for the Respondents. CORAM : R M SAVANT, JJ. DATE : 08th November 2011 P.C. 1 By the above Petition, the Petitioners challenge two orders i..e order dated 22/7/2005 passed by the Additional District Judge, Palghar and the order 27/01/2010 passed by District Judge-I Palghar. By the first order Misc. Civil Appeal No.85/2005 filed by the Respondent herein came to be allowed and, resultantly the Application Exhibit-5 for temporary injunction filed by the Respondent herein was allowed. By the second order the First Appellate Court rejected the Civil Misc. Application NO.152/2005 filed by the Petitioner herein for review of the said order dated 22/7/2005. 2 Shorn of unnecessary details, few facts could be stated thus :- The Petitioner herein initiated proceedings against one M/s. Barar Steel Pvt. Ltd. under the Central Excise Act on the ground that the said 2 WP-5596.11.sxw company had evaded payment of excise duty by forging the invoices. An Order in Original came to be passed by the Commissioner of Central Excise by virtue of which the show cause notice issued to the said company came to be confirmed and order of payment of excise duty and confiscation of goods came to be passed by the Commissioner. The Order in Original was challenged by the said M/s.Barar Steel Pvt. Ltd by filing an appeal before the CESTAT. The said appeal filed by the company came to be partly allowed, thereby the order of confiscation of the goods was set aside by the CESTAT. The matter was thereafter was carried in Appeal to this Court by the department by filing Central Excise Appeal No.93/2006 which was admitted by this Court and was pending for hearing and final disposal at the relevant time when the order impugned in the present Petition came to be passed. 3 It appears that the said M/s. Barar Steel Pvt Ltd. had availed of some loan facility from Punjab National Bank and in respect of which it had defaulted. The lease hold right in the property in question which was a plot was mortgaged to the said Punjab National Bank. This resulted in filing of proceedings by the Punjab National Bank before the Debts Recovery Tribunal for recovery of its dues. It appears that, a receiver was also appointed in respect of the said property of the company and the property was thereafter put in auction for recovery of the dues of the said Bank. The Respondent herein had participated in the said auction and being the highest bidder, the offer made by the Respondent herein was accepted and the sale was confirmed 3 WP-5596.11.sxw in favour of the Respondent herein by the Debts Recovery Tribunal. Thereafter certain events transpired as regards the application made by the Respondent for inclusion of its name in the Central Excise Registration. However, in my view, the said facts are not germane for a decision in the above Writ Petition. 4 In view of the fact that the Department threatened pasting of notice at the premises of the property to the effect that the property was under the control of the Central Government, the Respondent herein was constrained to file Special Civil Suit No.19/2005 for an injunction restraining the Department from disturbing and obstructing and interfering with the peaceful use, occupation and possession of the said property. In the said suit, the Respondent filed an Application-Exhibit-5 for temporary injunction. Initially by an order dated 9/5/2005 ad interim injunction came to be granted. However, by an order dated 10/6/2005 the said application came to be rejected by the trial Court and a direction was issued to the Respondent to pay appropriate court fees on the valuation of the suit, which was, according to the trial Court, required to be valued at Rs.50 lakhs. Aggrieved by the said order dated 10/6/2005, the Respondent filed Misc. Civil Appeal No.85/2005. The said appeal came to be allowed by the learned Additional District Judge, Palghar by his order dated 22/7/2005. The gist of the reasoning of the learned Additional District Judge was that since the order of confiscation was set aside, the property had not vested in the Department and the Department could therefore not interfere with the possession of the Respondent herein. 4 WP-5596.11.sxw 5 The Department thereafter filed Misc. Civil Application No.152/05 for review of the said order dated 22/7/2005. The said application for review came to be rejected by the District Judge-I, Palghar by the order dated 27/01/2010. The rejection was on the ground that no case for review of the order as contemplated by Order 47 was made out by the Department. However, some clerical mistakes were corrected in the said original order dated 22/7/2005. 6 Heard the learned counsel for the parties. Shri Rao, the learned counsel appearing for the Department, draws my attention to the order dated 28th September 2010 passed in Central Excise Appeal No.93 of 2006 by which order a Division Bench of this Court (Coram : V.C.Daga and R.M.Savant,JJ) has set aside the order dated 24/10/2005 passed by the CESTAT and has remitted the matter back to the Tribunal with a direction to consider the Appeal afresh. Relying on the said order, Mr.Rao, the learned counsel for the Department, would contend that since the order of the CESTAT setting aside confiscation has been set aside, the factual position changes, and therefore, the Respondent would not be entitled to the relief granted by the First Appellate Court by the impugned order dated 22/7/2005. 7 Per contra, it is the submission of Mr.Narichania, the learned counsel appearing for the Respondent, that the Respondent is a bonafide 5 WP-5596.11.sxw purchaser who has purchased the property in question by participating in the auction held by the Debts Recovery Tribunal for recovery of the dues of a secured creditor i.e. the Punjab National Bank. The learned counsel would place reliance on the judgment of the Apex Court reported in (2009) 2 SCC 121 in the case of Union of India and ors v/s. SICOM Limited and anr wherein it has been held that a debt which is secured or which by reason of the provisions of a statute becomes the first charge over the property having regard to the plain meaning of Article 372 of the Constitution of India must be held to prevail over the Crown debt which is an unsecured one. The facts in the said case were some what identical inasmuch as the Central Excise dues were sought to be recovered against the debtor who also owed a liability to the secured creditor i.e. the SICOM Ltd. The learned counsel would therefore contend that the order dated 28th September 2010 passed by the Division Bench would not make any material difference. 8 Having considered the rival contentions and also having gone through the reasons mentioned by the First Appellate Court whilst granting the relief, in my view, no case for interdiction in the writ jurisdiction of this Court under Article 227 of the Constitution of India is made out. However, since the suit is of the year 2005 and it is as yet pending and considering the fact that the order of CESTAT has been set aside by this Court by order dated 28th September 2010, in my view, it would be just and proper to direct the trial Court i.e. the learned Civil Judge, Senior Division, Palghar to hear and decide 6 WP-5596.11.sxw the Special Civil Suit No.19/2005 within a particular time frame. The learned Civil Judge, Senior Division, Palghar therefore to hear and decide the said Special Civil Suit No.19/2005 latest by 15th March 2012. The contentions of the parties as regards the impact of the order dated 28th September 2010 passed by the Division Bench of this Court in Central Excise Appeal No.93 of 2006 on the relief sought in the suit are expressly kept open for being agitated before the trial Court. Needless to state that the trial Court to decide the said suit on its own merits and in accordance with law within the time stipulated as above. With the aforesaid observations, the above Writ Petition is disposed of. [R.M.SAVANT, J]