1. Heard further argument. Hearing is concluded & the Judgment is as follows.
2. Petitioner challenges the demand of Rs. 5,15,079 (rupees five lakh fifteen thousand seventy nine) towards duty & Rs. 50,000 (rupees fifty thousand) towards penalty as per letter dated 29.03.2006 issued from the office of the Superintendent, Central Excise Customs & S. Tax, Range-I, Bomikhar, Bhubaneswar, representation of the Petitioner & rejection thereof as per letter dated 16.09.2007. All such documents are part of the record in Annexure-2 series from pages 18 to 22 of the brief.
3. Learned Counsel for the Petitioner states that opposite arty No. 4 was liable to pay that tax. Opposite Party No. 4 had taken the loan from Orissa State Financial Corporation (in short 'OSFC') for creating the establishment/business, but defaulted to clear up the arrear loan dues of the Opposite Party No. 3. Because of such failure of Opposite Party No. 4, Opposite Party No. 3, in exercise of the authority under Section 29 of the State Financial Corporation Act, 1951, not only seized & took over possession of the disputed premises but also sold it in public auction made in the High Court's premises. It was stipulated that the purchaser in auction is free from all encumbrances. Accordingly he states that the liability of Opposite Party No. 4 saddled on the Petitioner on the flimsy ground of successors-in-interest is not sustainable. In support of that contention Petitioner relies on the case of Union of India and Ors. v. SICOM Ltd. and Anr. : 2009 (1) SCALE 10, & the Judgment in Civil Appeal No. 3481 of 2002 of the Apex Court in the case of M/s. Suburban Ply & Panel Pvt. Ltd. v. Assistant Commissioner, Central Excise & Customs, Bhubaneswar Division and Ors. 2002 (1) OLR 558. The certified copy of the order of the Apex Court dated 12.02.2009 has been filed today in addition to Xerox copy filed earlier. Petitioner also files a Xerox copy of the Judgment in the case of Mascon Marbles Pvt. Ltd. v. Union of India : 2003 (158) E.L.T. 424 (S.C.), in support of his contention that the ration propounded therein is no more available. He also files the Xerox copy of the Judgment of the Division Bench of this Court in the case of M/s. Suburban Ply (supra) to indicate that the Civil Appeal was allowed setting aside that Judgment & that similar facts situation were involved in that case too. Accordingly he advances the argument.
4. Mr. Patnaik, Learned Counsel for the Central Excise Department while conceding to the ratio about crown debt not superseding the statutory dues however tries to make a distinction relating to the right of the Central Excise Department to collect arrear taxes of Opposite Party No. 4 in accordance with Rule 230 (2), which is under possession of the Petitioner. We find no merit in the submission made to distinguish the decision, because the Judgment in SICOM Ltd. (supra) has clearly stated in paragraphs 28 to 31 of the Judgment overruling the decision of this Court. The same legal consequence has been reiterated by the Apex Court in the above noted Civil Appeal No. 3481 of 2002 by stating that-
Having gone through the Judgment of the Division Bench of this Court in the case of Union of India and Ors. v. SICOM Ltd. and Anr. reported in : 2009 (1) SCALE 10, we are of the view that the issue involved in these Civil Appeals is squarely covered by the said decision. Accordingly, the Civil Appeals stand allowed with no order as to costs.
In view of such decision, the demand made in Annexure-2 series is not sustainable & accordingly quashed, & the Writ Petition is accordingly allowed. No cost.