IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933 WP(C).No. 8065 of 2011(G) -------------------------------- PETITIONER(S): ------------------- M/S.MINAR ISPAT PVT.LTD., 13/180, ANAKUZHIKKARA, KUTTIKATTOOR, KOZHIKODE-8, REPRESENTED BY ITS MANAGING DIRECTOR, SRI.A.MOHAMMED SHAFI. BY SRI.K.P.DANDAPANI, SENIOR ADVOCATE ADV.SRI.MILLU DANDAPANI RESPONDENT(S): --------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI. 2. THE COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, CALICUT COMMISSIONERATE, CALICUT-673 001. 3. THE DEPUTY COMMISSIONER OF CENTRAL EXCISE, KOZHIKODE DIVISION, KOZHIKODE-673 001. 4. THE SUPERINTENDENT OF CENTRAL EXCISE,KOZHIKODE RANGE-I,C.R.BUILDING, MANANCHIRA, KOZHIKODE-673 001. 5. M/S.KOYENCO IRON AND STEEL COMPANY (P) LTD., (PRESENTLY KNOWN AS M/S.PVH STEEL (P)LTD., ANAKKUZHIKARA, KUTTIKKATTOOR, CALICUT-673 008, REP.BY ITS MANAGING DIRECTOR, SRI.P.V.ARSHA, NOW WORKING AT CEOAPK BUILDERS, 5C, MALABAR GATE,NH 47 BYE-PASS, EDAPPALLY, KOCHI-682 024. R1-R4 BY ADVS. SHRI JIBU P.THOMAS, CGC SRI.THOMAS MATHEW NELLIMOOTTIL,SC,CB EX R5 BY ADV. SRI.P. PARAMESWARAN NAIR, A.S.G. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 8065/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER OF ADDITIONAL COMMISSIONER. P2: COPY OF THE SAID ORDER DATED 27/02/2003 OF COMMISSIONER (APPEALS). P3: COPY OF THE ORDER DATED 17/03/2005 OF THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, BANGALORE. P4: COPY OF THE JUDGMENT DATED 28/01/2008 IN C.E. APPEAL NO.43/2005 OF THIS HON'BLE COURT. P5: COPY OF THE ORDER DATED 27/07/2009 IN CIVIL APPEAL NOS.4787 - 4790 OF 2009 OF THE HON'BLE SUPREME COURT. P6: COPY OF THE NOTICE DATED 04/02/2011 ISSUED BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT. P7: COPY OF THE NOTICE DATED 01/03/2011 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. P8: COPY OF THE REPELY DATED 11/03/2011 REPLY TO EXHIBIT P7 NOTICE BY THE PETITIONER. P9: COPY OF THE A LETTER DATED 12/03/2011 SUBMITTED BY THE 5TH RESPONDENT TO THE 4TH RESPONDENT. RESPONDENT'S EXHIBITS: R1: COPY OF THE UNDERTAKING DATED 31/03/2006 ALONG WITH THE COVERING LETTER. /TRUE COPY/ P.A. TO JUDGE. svs ANTONY DOMINIC, J --------------------------------------- W.P(C) No.8065 of 2011 ---------------------------------------- Dated this the 12th day of July, 2011. J U D G M E N T The petitioner purchased the land and machinery from the 5th respondent and is engaged in the manufacture of iron and steel products. According to the petitioner, even after sale of the property to them, the 5th respondent still retains property having an extent of 2.055 acres of land. It is stated that the 5th respondent has committed certain defaults in repaying the dues of respondents 2 to 4 and that respondents are now initiating steps for realising of the dues by proceeding against the property sold to the petitioner. 2. Thereupon the petitioner made representations for excluding the property sold to them and requesting that the proceedings be continued against the property of the 5th respondent. There was no response. It is in these circumstances the writ petition has been filed seeking direction to quash Ext.P7 notice and requiring the official W.P(C) No.8065 of 2011 2 respondents to proceed against the property of the 5th respondent. 3. On behalf of respondents 1 to 5, standing counsel has filed the statement. In paras 3 and 4 of the statement, it has been stated thus: “With respect to the para 7 to 9 of the statement of facts it is submitted that the petitioner suppressed material facts from this Honourable Court. M/s.PVH Steels Pvt.Ltd. Kuttikkattoor had surrendered their Central Excise Registration Certificate No.AADCP 1685 JXM001 on 31.3.2006 on transfer of ownership of their factory to the petitioner. As such a temporary registration certificate was issued on 31.3.2006 to the petitioner, which was amended and fresh registration Certificate No.AAECM 5765 FXM001 issued on 25.4.2006. The petitioner while taking the registration had given an undertaking to the Assistant Commissioner of Central Excise, Kozhikode Division on 31.3.2006 that they shall pay all the liabilities of M/s.PVH Steels Pvt.Ltd. arising upto 6.2.2006. A true copy of the undertaking dated 31.3.2006 along with the covering letter is produced herewith and marked as Annexure R1. Further it is submitted that the penalty of Rs.4,05,824/- with interest in respect of the cases referred in para 6 of the order in Appeal No.138/2003 CE of the Commissioner (Appeal) are due from the 5th respondent. Since the 5th respondent units are not in existence and the assets and liabilities of M/s.PVH Steels Pvt.Ltd. have been taken over by the petitioner. In this circumstances these respondents initiated steps to realise the amount by resorting to attachment and sale of excisable goods as provided in Section 11 of the Central Excise Act, 1994.” W.P(C) No.8065 of 2011 3 4. The undertaking filed by the petitioner as mentioned in Para 3 is Annexure R1. Thus it is obvious from the above facts that the petitioner has given an undertaking that they shall discharge all the liabilities of the 5th respondent towards Central Excise Department and it is on that basis they have obtained registration from the Central Excise Department. In the light of the undertaking given by the petitioner, irrespective of whether the 5th respondent still possesses the property or not, respondents are entitled to proceed against the petitioner. 5. In that view of the matter I do not find any merit in the writ petition. Hence, the writ petition is dismissed. ANTONY DOMINIC ab JUDGE W.P(C) No.8065 of 2011 4