Page 138 - ELT_15th June 2020_VOL 372_Part 6th

816 EXCISE LAW TIMES [ Vol. 372

business or trade by any other person, all excisable goods, materials, prepa-
rations, 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 Cus-
toms, 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 dis-
posal or change.]”
12. A bare perusal of Section 11 makes it apparent that under the said
provisions, in the event any duty or any other sum of any kind is payable by an
assessee to the Central Government under the Central Excise Act, 1944 or the
Rules framed thereunder, the Central Government (i) may deduct the amount so
payable from any money owed to such person by the department; (ii) recover the
amount by attachment and sale of excisable goods belonging to such person or
(iii) if such amount payable is not recovered, the appropriate authority in the
department may issue a certificate specifying the amount due from the con-
cerned person and send the certificate to the Collector of the district in which
such person resides or conduct his business and the Collector upon receipt of
such certificate, shall proceed to recover from the said person as if it were an ar-
rear of land revenue.
13. None of the three methods provided under Section 11 of the Central
Excise Act, 1944 empowers the department to attach any property of an as-
sessee/person on the ground that such person or assessee may be liable to pay
the department any amount towards meeting the dues under the Central Excise
Act or the Rules framed thereunder. In the absence of such power, this Court
cannot concur with the stand taken by the respondent authorities in paragraph-8
of the affidavit in opposition that in exercise of power under Section 11 of the
Central Excise Act, 1944, the plants and machineries of the petitioner are being
attached for the purpose of meeting the dues that may be due from the petitioner
in respect of such cases mentioned therein, which are pending before the Hon’ble
Supreme Court of India or before the CESTAT, Kolkata.
14. The conduct of the Excise Department in not allowing the petitioner
to remove the plants and machineries is found to be contrary to the powers con-
ferred under Section 11 of the Central Excise Act, 1944 and this Court is of the
view that the respondent Excise Department cannot attach any other property of
the petitioner other than any excisable goods and also cannot restrain the peti-
tioner from lifting the plants and machineries involved in the present writ peti-
tion by taking recourse of Section 11 of the Central Excise Act, 1944.
15. Accordingly, it is ordered that the appropriate authority in the Cen-
tral Excise Department shall not prohibit the petitioner from lifting and taking
away the concerned properties by exercising their power under Section 11 of the
Central Excise Act, 1944.
16. In terms of the above, this writ petition stands disposed of.

______

EXCISE LAW TIMES  15th June 2020  138