Page 137 - ELT_15th June 2020_VOL 372_Part 6th

2020 ] PAN PARAG INDIA LTD. v. UNION OF INDIA 815

equipment comprising of plants and machineries from the factory premises
which were the result of the investment pursuant to the said notification dated
21-1-2004. In their communication, the petitioner specifically stated that the ten
years period prescribed in Clause-F of the notification dated 21-1-2004 had al-
ready expired and therefore, the petitioner is entitled to remove the capital in-
vestments, which were made prior to 31-3-2005 in the form of plants and ma-
chineries.
8. This writ petition is preferred with the grievance that in spite of the
petitioner being entitled to remove the capital investment in plants and machin-
eries under Clause-F of the notification dated 21-1-2004, the respondent authori-
ties are not allowing the petitioner to do so.
9. The stand of the Department as reflected in their affidavit in opposi-
tion dated 16-8-2017 in paragraph-8 is that a dispute as regards revenue payable
by the petitioner is involved in certain pending cases before the Hon’ble Su-
preme Court as well as before the CESTAT, Kolkata and therefore, the petitioner
is not allowed to remove the plants and machineries.
10. In order to justify such stand, the Excise Department in their affida-
vit in opposition relies upon the provisions of Section-11 of the Central Excise
Act, 1944, which according to the department provides for attachment of the
plants and machineries of the petitioner. In the aforesaid circumstance, the issue
for determination is that whether under Section 11 of the Central Excise Act,
1944, the Excise Department is empowered to attach and retain the plants and
machineries of the petitioner on the ground that certain amount are due from the
petitioner in respect of some cases, which are pending before the Hon’ble Su-
preme Court and the CESTAT, Kolkata.
11. In order to adjudicate upon the said issue, an examination of the
provisions of Section 11 of the Central Excise Act, 1944 would be relevant. Sec-
tion 11 of the Central Excise Act, 1944 is as under :-
“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 Col-
lector of the district in which such person resides or conducts his business
and the said Collector, on receipt of such certificate, shall proceed to recov-
er from the said person the amount 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 dis-
poses 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
EXCISE LAW TIMES  15th June 2020  137