Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2196 OF 2012
PUNJAB NATIONAL BANK …..APPELLANT
VERSUS
UNION OF INDIA & ORS. …RESPONDENTS
J U D G M E N T
Vineet Saran, J.
1. The present Civil Appeal arises out of the judgment
and order dated 05.08.2008 passed by the Allahabad
High Court, wherein the writ petition filed by the
Appellant was dismissed in limine.
2. The brief facts of the case, relevant for the purpose of
the present appeal, are that the Commissioner,
Customs and Central Excise, Ghaziabad (Respondent
No. 2) issued a show cause notice dated 31.12.1996 to
Signature Not Verified
Digitally signed by
DEEPAK SINGH
Date: 2022.02.24
17:12:37 IST
Reason:
M/s Rathi Ispat Ltd./Respondent No. 4 (for short “RIL”)
1
for evasion of excise duty and violation of the Central
Excise Act, 1944. By an order dated 25.11.1997,
Respondent No. 2 confirmed an excise duty demand of
Rs.6,97,62,102/ against RIL and imposed a penalty of
Rs.7,98,03,000/ under Rule 173Q(1) and confiscated
the land, building, plant and machinery of RIL under
Rule 173Q(2) of the Central Excise Rules, 1944 (for
short “1944 Rules”). Subrule 2 of Rule 173Q of the
Central Excise Rules, 1944, came to be omitted by a
notification dated 12.05.2000 issued by the
Government of India. Subsequently, the order dated
25.11.1997 was set aside by the Customs, Excise &
Gold (Control) Appellate Tribunal (CEGAT), now known
as the Customs Excise and Service Tax Appellate
Tribunal (CESTAT), on the ground of violation of
principles of natural justice, and the matter was
remanded back for de novo proceedings.
In 2005, RIL availed credit facilities under various
3.
schemes from the consortium of banks, with the
Appellant/Punjab National Bank as the lead bank, and
mortgaged/hypothecated all its movable and
2
immovable properties for securing the loan. RIL
created a charge on both the assets (raw material,
stock in progress, finished goods, receivables etc.) and
block (land, building, plant, machinery and other fixed
assets) of the company in favour of the Appellant bank.
4. Subsequently, the Commissioner Customs and Central
Excise, Ghaziabad vide order dt. 26.03.2007,
confirmed the demand of excise duty of
Rs.7,98,02,226/ and a penalty of Rs.7,98,03,000/ on
RIL. The Commissioner also ordered, under rule
173Q(2) of the 1944 Rules, for the confiscation of all
the land, building, plant, machinery and materials
used in connection with manufacture and storage.
5. The Central Excise Commissioner, vide another order
dated 29.03.2007, confirmed a demand of central
excise duty amounting to Rs.2,67,00,348 and
Rs.74,24,332 from RIL. The Commissioner also
imposed a penalty of Rs.3,41,24,680/ and further,
under rule 173Q(2) of the 1944 Rules, ordered
confiscation of land, building, plant, machinery,
material, conveyance etc. of RIL that were used in
3
connection with manufacture, production, storage or
disposal of goods.
6. However, in light of the fact that RIL had defaulted in
clearing the loan amount and had failed to liquidate
outstanding dues, the Appellant bank, on 02.08.2007,
issued notice to RIL under section 13(2) of the
SARFAESI Act, 2002, further, notice was issued to RIL
under section 13(4) of SARFAESI Act, 2002.
In light of the section 13(4) notice, the Office of the
7.
Assistant Commissioner, Customs and Central Excise
Division informed the bank, vide a letter dated
27.11.2007, that the property was already confiscated
by virtue of Rule 173Q(2) of 1944 Rules and that an
appeal is pending against the orders and the matter is
subjudice. Appellant bank replied to the above letter
on 22.12.2007, whereby it informed the department
that the properties in question had been mortgaged
with the bank and RIL was required to satisfy the
debts. In furtherance of this, the Appellant bank took
symbolic possession of the properties on 28.12.2007.
Subsequently, the Appellant bank was informed by the
4
Assistant Commissioner, Customs and Central Excise,
vide a letter dated 15.01.2008, that the properties of
RIL should not be dealt with without their written
consent.
8. In essence, it has been the contention of the Customs
& Excise Department that in view of the fact that that
all the movable and immovable properties of RIL stand
confiscated by the orders passed by the Commissioner,
Customs & Central Excise, Ghaziabad, the possession
of the property in question cannot be taken by the
Appellant bank.
9. Aggrieved by the orders of confiscation (dated
26.03.2007 and 29.03.2007) and the further
communications/letters by the department (dated
27.11.2007 and 15.01.2008), the Appellant bank filed
a Writ Petition before the Allahabad High Court, which
was dismissed with the observations that:
“We find that in the present case, taxes are
not sought to be recovered from M/s Rathi
Ispat Ltd., respondent No. 4, by way of
attachment or otherwise from the movable
or immovable assets of the respondent no.4,
but the stand of the Central Excise
Authorities is that the properties stand
5
confiscated and vests in the Central
Government as a result of the order of
confiscation”
The High Court further held that:
“From the meaning of the word
confiscate/confiscation”, we find that if any
property has been confiscated it vests in the
state and no person can claim any right,
title, or interest over it.”
While dismissing the Writ Petition of the Appellant
bank, the Allahabad High Court, eventually held that:
“In view of the matter, the question of first
charge or second charge over the properties
would not arise. The debt does not get
extinguished but it cannot be recovered
from the confiscated property that being the
position, we do not find any merit in the
Writ Petition. So far as the challenge to the
order of confiscation is concerned, we may
mention that the petitioner has no locus
standi to challenge the order of confiscation
as the Respondent no. 4 has already
preferred an appeal against it. However, if
in appeal preferred by Respondent no. 4,
the order of confiscation is set aside then
the bank can proceed against the properties
in question in accordance with law”
10. Aggrieved by the abovementioned High Court Order,
this appeal has been filed by way of Special Leave
Petition.
6
11. Mr. Dhruv Mehta, learned Senior Counsel for the
Appellant Bank has raised before us the following two
issues which arise for our consideration:
: Whether the Ld. Commissioner Custom
Issue No.1
and Central Excise could have invoked the powers
under Rule 173(Q)(2) of Central Excise Rules, 1944
on 26.03.2007 and 29.03.2007 for confiscation of
land, buildings etc., when on such date, the rule
173Q(2) was not on the Statue Book having been
omitted w.e.f. 17.05.2000?
Issue No.2: Whether in the absence of any
provisions providing for First Charge in relation to
Central Excise dues in the Central Excise Act, 1944,
the dues of the Excise department would have
priority over the dues of the Secured Creditors or
not?
12. With respect to the first issue , it has been argued by
the learned Counsel for the Appellant bank that the
Commissioner could not have passed the orders dated
26.03.2007 and 29.03.2007 by invoking the powers
under Rule 173Q(2), which was not in existence in the
Statute Books as on the said date, having been omitted
by a notification dated 12.05.2000.
13. It has been contended that reliance upon the
provisions contained in Section 38A of the Central
7
Excise Act, 1944 and Section 6 of the General Clauses
Act, 1897 to support the orders of the Commissioner is
liable to be rejected for the reason that a Constitution
Bench of this Court, in the matter of
Kolhapur
Canesugar Works Ltd. Vs Union of India & Ors.
has held that the provisions
[(2000) 2 SCC 536]
contained in section 6 of the General Clauses Act,
1897 are not applicable to the Central Excise Rules. It
has further been contended that no reliance can be
placed on section 38A for the reason that the provision
contained in the said section 38A are attracted “unless
a different intention appears”. In the present case, the
contraintention of the legislature that the legislature
did not intent to revive/restore the power of
confiscation of any land, building, plant machinery
etc., after omission of the provisions contained in Rule
173Q(2) w.e.f 12.05.2000 is evident from the following:
I. The provisions contained in Rule 173Q(2) i.e.
power to confiscate any land, building, plant,
machinery etc. after omission w.e.f.
12.05.2000 has not been introduced in the
subsequent Central Excise Rules, 2001,
8
Central Excise Rules, 2002 and Central
Excise Rules, 2017.
II. Further, Rule 211 of the Central Excise
Rules, 1944, inter alia, provided that
“anything” confiscated under the Rules shall
thereupon vest in Central Government,
whereas Rule 28 of the Central Excise Rules
of 2001, 2002 and 2017, which are pari
materia to the earlier Rule 211 of the 1944
Rules, instead of the word “anything”,
provided for vesting of confiscated “Goods” in
the Central Government.
III. Thus, after omission of Rule 173Q(2) of 1944
Rules w.e.f. 12.05.2000 and after
supersession of Rule 211 of 1944 Rules in the
year 2001, the newly enacted Rule 28 of the
Rules of 2001, Rule 28 of the Rules of 2002
and Rule 28 of the Rules of 2017, did not
provide for confiscation of any land, building,
plant, machinery etc. and their consequent
vesting in the Central Government, as Rule
28 only provided for vesting in the Central
Government the “Goods” confiscated by the
Central Excise Authorities under the Excise
Act, 1944.
In support of the abovementioned submissions, Mr.
Dhruv Mehta relies upon a judgment of the Gujarat
High Court, in the matter of
Kotak Mahindra Bank
Ltd. Vs. District Magistrate [2010 SCC online
Gujarat 10656].
9
14. With respect to the first issue, the Senior Counsel for
the Appellant concluded his submission by stating that
the Commissioner had no power, authority or
jurisdiction to invoke the provisions contained in Rule
173Q(2) of the Central Excise Rules, which stood
omitted from the Statue book w.e.f. 12.05.2000, much
prior to the passing of the orders dated 26.03.2007
and 29.03.2007.
The raised by the learned Senior Counsel
15. second issue
for the Appellant is “Whether in the absence of any
provisions providing for First Charge in relation to
Central Excise dues in the Central Excise Act, 1944, the
dues of the Excise department would have priority over
the dues of the Secured Creditors or not?” It has been
contended that prior to insertion of Section 11E in the
Central Excise Act, 1944 w.e.f. 08.04.2011, there was
no provision in the Act of 1944 inter alia, providing for
First Charge on the property of the Assessee or any
person under the Act of 1944. Therefore, in the event
like the present case, where the land, building, plant
10
machinery, etc. had been mortgaged/hypothecated in
favour of the secured creditor, having regard to the
provisions contained in section 2(zc) to (zf) of
SARFAESI Act, 2002, read with provisions contained in
Section 13 of the SARFAESI Act, 2002, the secured
creditor will have a First Charge on the Secured Assets.
16. The learned Senior Counsel has further submitted that
section 35 of the SARFAESI Act, 2002 inter alia,
provides that the provisions of the said Act,
notwithstanding anything inconsistent therewith
contained in any other law for the time being in force
or any instrument having effect by virtue of any such
law, the provisions of the SARFAESI Act, 2002 shall
have overriding effect on all other laws. It was further
contended that even the provisions contained in
section 11E of the Central Excise Act, 1944, which has
been inserted w.e.f. 08.04.2011, provides for First
Charge on the property of the Assessee and is a non
obstante Clause. However, the provisions contained in
Section 11E are subject to the provisions contained in
the SARFAESI Act, 2002. Thus, the provisions of
11
SARFAESI Act, 2002, even after insertion of Section
11E in the Central Excise Act, 1944 w.e.f. 08.04.2011,
has overriding effect on the provisions of the Act of
1944.
In addition to the abovementioned submissions, the
17.
learned Senior Counsel for the Appellant has argued
that it is well settled law laid down by this Court that
the Crown debts (Unsecured) have no priority over the
Secured dues of the Secured Creditors/ Pawnee/
Bailee. In support of the above submission, reliance
has been placed upon the following judgements:
i. Bank of Bihar vs State of Bihar [(1972) 3 SCC
196]
ii. Dena Bank vs Bhikhabhai Prabhu Dass Parikh &
Anr. [(2000) 5 SCC 694]
iii. Central Bank of India Vs. Siriguppa Sugurs &
Chemicals Ltd. & Ors. [(2007) 8 SCC 353]
iv. Union of India vs SICOM Ltd. & Anr. [(2009) 2
SCC 121]
v. Rana Girders Ltd. Vs Union of India & Ors.
[(2012) 10 SCC 746]
12
vi. Sitani Textiles and Fabrics (Pvt.) Ltd. Vs.
Assistant Collector of Customs & Central Excise
[1998 SCC Online Andhra Pradesh 416]
vii. UTI Bank Ltd. Vs. Dy. Commissioner Central
Excise [2006 SCC Online Madras 1182 (Full
Bench)]
viii.
Krishna Lifestyle Technologies Ltd. Vs. Union of
India & Ors. [2008 SCC Online Bombay 137]
18. Mr. Mehta has, thus, submitted that in view of the
above submissions and decided cases, the Appellant
bank, being a secured creditor under the provisions of
SARFAESI Act, 2002, had First Charge on the secured
Assets and is entitled to recover its secured dues, prior
to the dues of the Excise Department. It has also been
submitted that the intention of the Legislature, apart
from the provisions contained in Section 11E in the
Central Excise Act, 1944 [inserted w.e.f. 08.04.2011],
is also evident from the subsequent provisions inserted
in RDBA Act, 1993, by way of Section 31B [notified
w.e.f. 01.09.2016] and insertion of Section 26E in the
SARFAESI Act [w.e.f. 24.01.2020], that the Legislature
13
has always intended that the Banks and Financial
Institutions will have priority to recover its secured
dues from the Secured Assets prior to
payment/recovery of the dues of Revenue/Taxes,
Government dues.
19. Per contra, Mr. K.M. Nataraj, learned Additional
Solicitor General appearing for the respondent has
contended that the appeal raises the following two
questions of law:
(A) Issue No. 1: Whether a confiscation order
passed by Respondent No. 2 in respect of the
land, building, plant and machinery of the
Respondent No. 4 (RIL) can be defeated by a
security interest created by the said
Respondent No. 4 (RIL) in favour of the
Appellants and other banks, almost 8 years
after the confiscation proceedings (under Rule
173Q(2) of the Central Excise Rules, 1944) had
been initiated by the respondent No. 2 against
RIL?
(B) Issue No. 2: Whether the Proceedings initiated
by the Respondent no.2, Commissioner Custom
& Central Excise under rule 173Q(2) of the
Central Excise Rules, 1944, prior to the
omission of the said Rule from the Statute Book
are not saved on account of Section 38A(c) and
38A(e) of the Central Excise Act, 1944 and
consequently, Whether the Commissioner was
14
not justified in passing orders of confiscation
dated 26.03.2007 and 29.03.2007, although on
such date, the said Rule 173Q(2) was omitted
and the 1944 rules were replaced with the
Central Excise Rules 2001 subsequently.
The learned Additional Solicitor General submitted that
20.
the first issue raised by the Appellant was never raised
by the Appellant either before the Tribunal or in the
Appeal before this Court and has been raised for the
first time in this Appeal.
With respect to the second issue raised by the
21.
Appellant, it has been argued by the Learned ASG that
this question, as framed and answered by the
Appellant, is entirely alien to the dispute at hand. The
present dispute is not at all one of priority of charges
or debts. On the other hand, what was challenged
before the High Court was the order of confiscation,
and the relevant question for consideration of this
Court is whether a confiscation order passed by the
Central Excise Authorities in respect of the land,
building, plant and machinery of RIL can be defeated
by a security interest created by RIL in favour of the
15
Appellant and other banks, almost 8 years after the
confiscation proceedings (under Rule 173Q(2) of the
Central Excise Rules, 1944) had been initiated by the
respondent No. 2 against RIL?
Mr. K.M. Nataraj, ASG, has contended that the
22.
proceedings under Rule 173Q(2) of the 1944 Rules
commenced by show cause notice dated 31.12.1996.
Notwithstanding the omission of Section 173Q(2) from
the 1944 Rules vide notification dated 12.05.2000, the
respondent No. 3 was entitled to continue proceedings
on account of Section 38A(c) and Section 38A(e) of the
Central Excise Act, 1944. The respondent No. 2 was
therefore entitled to pass orders dated 26.03.2007 and
29.03.2007 in exercise of his powers under the
repealed Rule 173Q(2) of the 1944 Rules, even though
as on the date of the said orders, the 1944 Rules had
been replaced. In support of the same he submitted
that it is not in dispute that the confiscation
proceedings against RIL were initiated in 1996 i.e.
much before the repeal of the 1944 Rules and although
the order initially passed in those proceedings was set
16
aside by the CEGAT on account of the violation of the
principles of natural justice, it is evident from the
remand order itself that the proceedings (post remand)
were a continuation of what had been initiated vide
show cause notice dated 31.12.1996. To buttress this
submission, reliance has been placed upon the
decision rendered in the case of Nagarjuna
Construction Company Ltd. Vs. Government of
Andhra Pradesh (2008) 16 SCC 276, wherein it is
held that when an order is stuck down as invalid,
being in violation of principles of natural justice, all
that is done is vacation of the order assailed by virtue
of its inherent defect, but the proceedings are not
terminated. While doing so, this court relied upon
Canara Bank vs Debasis Das (2003) 4 SCC 557 ) .
23. It was thus urged, that once it is established that the
confiscation proceedings under Rule 173Q started
much prior to the omission of the said Rule from the
Statute, the question for consideration would be
whether the proceedings against RIL could be
17
continued under a provision which no longer existed
on the Statute. Mr. K.M. Nataraj, ASG has submitted
in this context that section 38A of the Central Excise
Act, 1944, provides, inter alia, that even when a Rule is
repealed, amended or superseded, unless a different
intention appears, such repeal would not affect any
right or liability acquired or accrued or affect any
investigation, legal proceeding or remedy in respect of
any such right or liability.
24. In context of the application of section 6 of the General
Clauses Act, 1897, learned ASG relied upon decisions
of this Court in the cases of Gammon India vs
Special Chief Secretary [(2006) 3 SCC 354];
Ambalal Sarabhai Enterprises Ltd. Vs Amritlal
[(2001) 8 SCC 397]; Brihan Maharashtra Sugar
Syndicate Ltd. Vs Janarand Ramachandra
Kulkarni (1960 3 SCR 85) and contended that
although Rule 173Q(2) was initially omitted from the
1944 Rules and subsequently the 1944 Rules were
repealed and were substituted by the 2001 Rules,
18
there was nothing expressly stated in the new Rules
which manifested any intention to destroy the
liabilities which came into existence on account of the
1944 Rules or which manifested any intention to
nullify any investigation that was pending in respect of
such accrued liability. Learned ASG thus submitted,
that Section 38A(c) and 38A(e) of the Central Excise
Act would apply with full force to save the proceedings
which had already been initiated under Rule 173Q(2)
of the 1944 Rules, as Section 38A(c) of the Act saves
the rights and liabilities which were not only acquired
but also accrued as on the date of the amendment or
repeal of a provision, and Section 38A(e) of the Act
saves investigations that had commenced into such
rights and liabilities.
25. Mr. Natraj, learned ASG has further submitted that the
second issue raised by the Appellant (regarding the
priority of the dues of the secured creditor over that of
crown debts or government debts) does not arise at all
in the facts of the present case, since the confiscation
order by the Respondent No. 2 is not merely an order
19
for recovery of dues but instead is in the nature of a
penal order to punish the wrongdoer i.e. RIL. This, is
evident from the fact that even under the 1944 Rules,
confiscation is provided for under Rule 173Q whereas
mere recovery of dues is provided for under section 11
of the Central Excise Act, 1944.
26. It is contended by Mr. K.M. Nataraj, ASG, that in the
present case, the confiscation proceedings were
initiated almost 9 years prior to the charge being
created in respect of the very same properties. At the
time of creation of security interest, it was for the
Appellant bank to be aware of the existence of the
confiscation proceedings. It is further submitted that a
charge or security interest created on a property
cannot defeat or affect confiscation proceedings
initiated by a statutory body in any manner.
27. Mr. Natraj, learned ASG also contended that the
decisions relied upon by the Appellant are
distinguishable on facts, since those cases deal with
the question of priority of a secured creditor over the
Crown’s debts and does not even touch on the issue of
20
confiscation proceedings with respect to the interest of
a secured creditor.
28. It has been submitted that a similar question did arise
in the case of Bank of Bihar vs State of Bihar
, where a question was as to
[(1972) 3 SCC 196]
whether a valid seizure can defeat the right of a
secured creditor. In that case, this Court did not
interfere with the seizure but only held that after the
goods had been seized by the government, the secured
creditors may still retain his right to satisfy his debt.
This principle finds reflection in Section 13(4)(d) of the
SARFAESI Act. It has, thus, been submitted that, at
best, the Appellant may resort to the mechanism
prescribed under section 13(4)(d) of the SARFAESI Act
to recover the amounts due to it, if and when the
properties are sold by the respondent authorities.
Therefore, assuming the existence of any right of
recovery from Respondents, the Appellant may, at best,
be entitled to issue a notice as envisaged in Section
13(4)(d) of the SARFAESI Act and then take the further
steps mentioned therein.
21
Lastly, Mr. K.M. Nataraj, ASG has submitted that the
29.
validity of the confiscation order cannot be called into
question merely on account of the Appellant being a
secured creditor. The question as to whether the
amounts due to the Customs Department would have
priority over the debts due to the secured creditor does
not arise in this case, since what is challenged is the
confiscation order and nothing else. A confiscation
order, cannot be quashed merely because a security
interest is created in respect of the very same property.
30. For ready reference, the relevant provisions of the
concerned Act and Rules are extracted below:
(Central Excise Act, 1944)
“ .
Section 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 or require any other
Central Excise officer or a proper officer
22
referred to in section 142 of the customs
act, 1962 (52 of 1962) to 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 be in the hands or under disposal or
control of such other officer, 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 Collector of the district in
which such person resides or conducts his
business and the said Collector, on receipt
of such certificate, shall proceed to recover
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 disposes 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 business or trade by any
other person, all excisable goods, materials,
preparations, 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 Customs, after
obtaining written approval from the
Principal Commissioner of Central Excise or
23
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 disposal or change.”
“ Section 38A . Effect of amendments,
etc., of rules, notifications or orders.
Where any rule, notification or order made
or issued under this Act or any notification
or order issued under such rule, is
amended, repealed, superseded or
rescinded, then, unless a different intention
appears, such amendment, repeal,
supersession or rescinding shall not
a) revive anything not in force or existing at
the time at which the amendment, repeal,
supersession or rescinding takes effect; or
b) affect the previous operation of any rule,
notification or order so amended, repealed,
superseded or rescinded or anything duly
done or suffered thereunder; or
c) affect any right, privilege, obligation or
liability acquired, accrued or incurred under
any rule, notification or order so amended,
repealed, superseded or rescinded; or
d) affect any penalty, forfeiture or
punishment incurred in respect of any
offence committed under or in violation of
any rule, notification or order so amended,
repealed, superseded or rescinded; or
e) affect any investigation, legal proceeding
or remedy in respect of any such right,
privilege, obligation, liability, penalty,
forfeiture or punishment as aforesaid, and
any such investigation, legal proceeding or
remedy may be instituted, continued or
enforced and any such penalty, forfeiture or
punishment may be imposed as if the rule,
24
notification or order, as the case may be,
had not been amended, repealed,
superseded or rescinded.”
(Central Excise Act, 1944) w.e.f.
08.04.2011
“Section 11E. Liability under Act to be
first charge.
Notwithstanding anything to the contrary
contained in any Central Act or State Act,
any amount of duty, penalty, interest, or
any other sum payable by an assessee or
any other person under this Act or the rules
made thereunder shall, save as otherwise
provided in section 529A of the Companies
Act, 1956, (1 of 1956) the Recovery of Debts
Due to Banks and the Financial Institutions
Act, 1993 (51 of 1993) and the
Securitisation and Reconstruction of
Financial Assets and the Enforcement of
Security Interest Act, 2002, (54 of 2002) be
the first charge on the property of the
assessee or the person, as the case may
be.”
Rule 173 Q of Central Excise Rules.
1944 Prior to 12.5.2000
“ Rule 173 Q. Confiscation and Penalty
(1) If any manufacturer, producer or
licensee of a warehouse
(a) Removes any excisable goods in
contravention of any of the provisions of
these rules; or
(b) Does not account for any excisable
goods manufactured, produced or stored by
him; or
(c) Engages in the manufacture,
production or storage of any excisable
25
goods without having applied for the license
required under section 6 of the Act; or
(d) Contravenes any of the provisions of
these rules with intent to evade payment of
duty,
Then all such goods shall be liable to
confiscation and the manufacturer producer
or licensee of the warehouse, as the case
may be shall be liable to a penalty not
exceeding three times the value of the
excisable goods in respect of which any
contravention of the nature referred to in
clause (a) or clause (b) or clause (c) or
clause (d) has been committed or five
thousand rupees, whichever is greater.
(2) Where
(a) In case of a contravention of the nature
referred to in clause (a) or clause (b) or
clause (c) or clause (d) of sub rule (1), the
duty leviable on the excisable goods
referred to in that sub rule exceeds one lakh
rupees, or
(b) Any manufacturer, producer or licensee
of a warehouse, whose excisable goods
were confiscated under sub rule (1) and
upon whom penalty was imposed under
that sub rule, contravenes against any of
the provisions of clause (a) or clause (b) or
clause (c) or clause (d) of sub rule (1) and
the duty leviable on the excisable goods in
respect of the contravention for the second
or any subsequent occasion exceeds ten
thousand rupees.
Then, in a case falling under clause (a) of
this sub rule or in a case falling under
clause (b) thereof (whether the
contravention under that clause has been
26
committed for the second or any subsequent
occasion), the officer adjudging the case
under section 33 of the Act may, in addition
to the award of the confiscation and penalty
under the sub rule (1), direct, for reasons to
be recorded in writing, the confiscation of
any or all of the following belonging to such
manufacturer, producer or licensee of a
warehouse, namely:
(i) any land, building, plant, machinery,
materials, conveyance, animal or any other
thing used in connection with the
manufacture, production, storage, removal
or disposal of such goods, or
(ii) any other excisable goods on such
land, or in such building or produced or
manufactured with such plant, machinery,
materials or thing]”
(Central Excise Rules, 1944)
“ Rule 211 . On confiscation, property to
vest in Central Government:
(1) When anything is confiscated under
these rules, such things shall thereupon
vest in" Central Government.
(2) The officer adjudging confiscation shall
take and hold possession of the things
confiscated, and every Officer of Police, on
the requisition of such officer, shall assist
him in taking and holding such
possession.”
Rule 28 of Central Excise Rules, 2001
[Issued in supersession of Central
Excise Rules, 1944]
“
Rule 28. Confiscated property to vest
in Central Government:
27
When any goods are confiscated under
these rules, such things shall thereupon
vest in the Central Government.
The Central Excise Officer adjudging
confiscation shall take and hold possession
of the things confiscated, and every officer
of police, on the requisition of such Central
Excise Officer, shall assist him in taking
and holding such possession.”
Rule 28 of Central Excise Rules, 2002
[Issued in supersession of Central
Excise Rules, 2001]
“Rule 28. Confiscated property to vest
in Central Government:
When any goods are confiscated under
these rules, such things shall thereupon
vest in the Central Government.
The Central Excise Officer adjudging
confiscation shall take and hold possession
of the things confiscated, and every officer
of police, on the requisition of such Central
Excise Officer, shall assist him in taking
and holding such possession.”
Rule 28 of Central Excise Rules, 2017
[Issued in supersession of Central
Excise Rules,2002]
“RULE 28. Confiscation and penalty. —
(1) Subject to the provisions of section 11
AC of the Act, if any producer,
manufacturer, registered person of a
warehouse, or an importer who issues an
invoice on which CENVAT credit can be
taken, or a registered dealer,
(a) removes any excisable goods in
contravention of any of the provisions of
these rules or the notifications issued under
these rules; or
28
(b) does not account for any excisable goods
produced or manufactured or stored by him;
or
(c) engages in the manufacture, production
or storage of any excisable goods without
having applied for the registration certificate
required under section 6 of the Act; or
(d) contravenes any of the provisions of
these rules or the notifications issued under
these rules with intent to evade payment of
duty,
then, all such goods shall be liable to
confiscation and the producer or
manufacturer or registered person of the
warehouse, or an importer who issues an
invoice on which CENVAT credit can be
taken, or a registered dealer, as the case
may be, shall be liable to a penalty not
exceeding the duty on the excisable goods
in respect of which any contravention of the
nature referred to in clause (a) or clause (b)
or clause (c) or clause (d) has been
committed, or five thousand rupees,
whichever is greater.
(2) An order under subrule (1) shall be
issued by the Central Excise Officer,
following the principles of natural justice.”
SARFAESI Act, 2002
Section 2(zc) to 2(zf)
“(zc) “secured asset ” means the property
on which security interest is created;
(zd) “ secured creditor” means—
(i) any bank or financial institution or any
consortium or group of banks or financial
institutions holding any right, title or
29
interest upon any tangible asset or
intangible asset as specified in clause (l);
(ii) debenture trustee appointed by any
bank or financial institution; or
(iii) an asset reconstruction company
whether acting as such or managing a trust
set up by
such asset reconstruction company for the
securitisation or reconstruction, as the case
may be; or
(iv) debenture trustee registered with the
Board appointed by any company for
secured debt securities; or
(v) any other trustee holding securities on
behalf of a bank or financial institution,
in whose favour security interest is created
by any borrower for due repayment of any
financial
assistance.]
means a debt which is
(ze) “secured debt”
secured by any security interest;
means right, title
(zf) “security interest”
or interest of any kind, other than those
specified in section 31, upon property
created in favour of any secured creditor
and includes—
(i) any mortgage, charge, hypothecation,
assignment or any right, title or interest of
any kind, on tangible asset, retained by the
secured creditor as an owner of the
property, given on hire or financial lease or
conditional sale or under any other contract
which secures the obligation to pay any
unpaid portion of the purchase price of the
asset or an obligation incurred or credit
provided to enable the borrower to acquire
the tangible asset; or
30
(ii) such right, title or interest in any
intangible asset or assignment or licence of
such intangible asset which secures the
obligation to pay any unpaid portion of the
purchase price of the intangible asset or the
obligation incurred or any credit provided to
enable the borrower to acquire the
intangible asset or licence of intangible
asset.”
Section 13
“ .—
13. Enforcement of security interest
(1) Notwithstanding anything contained in
section 69 or section 69A of the Transfer of
Property Act, 1882 (4 of 1882), any security
interest created in favour of any secured
creditor may be enforced, without the
intervention of the court or tribunal, by such
creditor in accordance with the provisions of
this Act.
(2) Where any borrower, who is under a
liability to a secured creditor under a
security agreement, makes any default in
repayment of secured debt or any
instalment thereof, and his account in
respect of such debt is classified by the
secured creditor as nonperforming asset,
then, the secured creditor may require the
borrower by notice in writing to discharge in
full his liabilities to the secured creditor
within sixty days from the date of notice
failing which the secured creditor shall be
entitled to exercise all or any of the rights
under subsection (4).
(3) The notice referred to in subsection (2)
shall give details of the amount payable by
the borrower and the secured assets
intended to be enforced by the secured
31
creditor in the event of nonpayment of
secured debts by the borrower.
(4) In case the borrower fails to discharge
his liability in full within the period
specified in subsection (2), the secured
creditor may take recourse to one or more of
the following measures to recover his
secured debt, namely:—
(a) take possession of the secured
assets of the borrower including the
right to transfer by way of lease,
assignment or sale for realising the
secured asset;
[(b) take over the management of
the business of the borrower including
the right to transfer by way of lease,
assignment or sale for realising the
secured asset:
Provided that the right to transfer
by way of lease, assignment or sale
shall be exercised only where the
substantial part of the business of the
borrower is held as security for the
debt:
Provided further that where the
management of whole of the business
or part of the business is severable, the
secured creditor shall take over the
management of such business of the
borrower which is relatable to the
security for the debt;
(c) appoint any person (hereafter
referred to as the manager), to manage
the secured assets the possession of
which has been taken over by the
secured creditor;
(d) require at any time by notice in
writing, any person who has acquired
any of the secured assets from the
borrower and from whom any money is
32
due or may become due to the
borrower, to pay the secured creditor,
so much of the money as is sufficient to
pay the secured debt.
(5) Any payment made by any person
referred to in clause (d) of subsection (4) to
the secured creditor shall give such person
a valid discharge as if he has made
payment to the borrower.
(6) Any transfer of secured asset after
taking possession thereof or take over of
management under subsection (4), by the
secured creditor or by the manager on
behalf of the secured creditor shall vest in
the transferee all rights in, or in relation to,
the secured asset transferred as if the
transfer had been made by the owner of
such secured asset.
(7) Where any action has been taken
against a borrower under the provisions of
subsection (4), all costs, charges and
expenses which, in the opinion of the
secured creditor, have been properly
incurred by him or any expenses incidental
thereto, shall be recoverable from the
borrower and the money which is received
by the secured creditor shall, in the absence
of any contract to the contrary, be held by
him in trust, to be applied, firstly, in
payment of such costs, charges and
expenses and secondly, in discharge of the
dues of the secured creditor and the residue
of the money so received shall be paid to
the person entitled thereto in accordance
with his rights and interests.
8 ……………………..
9 ……………………..
10 ……………………
11 ……………………
12 ……………………
33
13 ……………………
SARFAESI Act, 2002
Section 35
“
35. The provisions of this Act to
.—The provisions of
override other laws
this Act shall have effect, notwithstanding
anything inconsistent therewith contained
in any other law for the time being in force
or any instrument having effect by virtue of
any such law.” (emphasis
supplied)
We have heard learned counsel for both the parties at
31.
length and have carefully perused the record.
The Commissioner Customs and Central Excise,
32.
Ghaziabad vide order dt. 26.03.2007, ordered the
confiscation of all the land, building, plant, machinery
etc. of RIL. This confiscation order was passed under
rule 173Q(2) of the Central Excise Rules, 1944.
However, in the impugned order, the High Court has
not considered that on the date of the confiscation
orders i.e. 26.03.2007 and 29.03.2007, Rule 173Q(2)
stood omitted from the statute books vide government
notification dated 12.05.2000.
34
33. We do not find merit in the submission of the learned
Counsel for the Respondent that notwithstanding the
omission of Section 173Q(2) from the 1944 Rules vide
notification dated 12.05.2000, the Respondent No. 3
was entitled to continue the proceedings on account of
Section 38A(c) and Section 38A(e) of the Central Excise
Act, 1944, read along with Section 6 of the General
Clauses Act, 1897.
Constitution bench of this Court in
34. Kolhapur
Canesugar Works Ltd. Vs Union of India & Ors.
[(2000) 2 SCC 536] has held that:
“11. In the factual backdrop of the case
discussed earlier the question that arises
for determination is whether after omission
of the old Rule 10 and 10A and its
substitution by the new Rule 10 by the
Notification No 267/77 dated 6.8.77 the
proceedings initiated by the notice dated
27.4.77 could be continued in law. If the
question is answered in the affirmative then
the order dated 15/27th October, 1977 of
the Asstt. Collector of Central Excise
confirming the demand for recredit of the
amount of Rs. 61,41,930 cannot be
interfered with. On the other hand, if the
question is answered in the negative then
the said order is to be taken as nonest.
.
.
35
.
34. (...) It is not correct to say that in
considering the question of maintainability
of pending proceedings initiated under a
particular provision of the rule after the said
provision was omitted the Court is not to
look for a provision in the newly added rule
for continuing the pending proceedings. It is
also not correct to say that the test is
whether there is any provision in the rules
to the effect that pending proceedings will
lapse on omission of the rule under which
the notice was issued. It is our considered
view that in such a case the Court is to look
to the provisions in the rule which has been
introduced after omission of the previous
rule to determine whether a pending
proceeding will continue or lapse. If there is
a provision therein that pending
proceedings shall continue and be disposed
of under the old rule as if the rule has not
been deleted or omitted then such a
proceeding will continue. If the case is
covered by Section 6 of the General Clauses
Act or there is a parimateria provision in
the statute under which the rule has been
framed in that case also the pending
proceeding will not be affected by omission
of the rule. In the absence of any such
provision in the statute or in the rule the
pending proceedings would lapse on the
rule under which the notice was issued or
proceeding was initiated being
deleted/omitted. It is relevant to note here
that in the present case the question of
divesting the Revenue of a vested right does
not arise since no order directing refund of
the amount had been passed on the date
when Rule 10 was omitted.
36
35. We, therefore, hold that the decisions of
the Full Bench of the Gujarat High court
and the Division Bench of the Karnataka
High Court noted above were not correctly
decided. The said decisions are overruled.
36. In the case in hand, Rule 10 or Rule 10
A is neither a "Central Act" nor a
"Regulation" as defined in the Act. It may be
a Rule under Section 3(51) of the Act.
Section 6 is applicable where any Central
Act or Regulation made after
commencement of the General Clauses Act
repeals any enactment. It is not applicable
in the case of omission of a "Rule".
37. The position is well known that at
common law, the normal effect of repealing
a statute or deleting a provision is to
obliterate it from the statute book as
completely as if it had never been passed,
and the statute must be considered as a
law that never existed. To this rule, an
exception is engrafted by the provisions
Section 6(1). If a provision of a statute is
unconditionally omitted without a saving
clause in favour of pending proceedings, all
actions must stop where the omission finds
them, and if final relief has not been
granted before the omission goes into effect,
it cannot be granted afterwards. Savings of
the nature contained in Section 6 or in
special Acts may modify the position. Thus,
the operation of repeal or deletion as to the
future and the past largely depends on the
savings applicable. In a case where a
particular provision in a statute is omitted
and in its place another provision dealing
with the same contingency is introduced
without a saving clause in favour of
37
pending proceedings then it can be
reasonably inferred that the intention of the
legislature is that the pending proceeding
shall not continue but a fresh proceeding for
the same purpose may be initiated under
the new provision.”
(emphasis supplied)
35. The Gujarat High Court in
Kotak Mahindra Bank
Ltd. Vs. District Magistrate [2010 SCC online
has held that from a perusal of Rule
Gujarat 10656]
28, it is clear that the Legislature intended to
confiscate only “goods” which is distinct from
immovable property like land, building, plant,
machinery etc. We quote, with approval, the reason for
which, the High Court held that “The competent
authority of Excise and Customs Department, including
the Commissioner of Central Excise and Customs,
VadodaraII had no jurisdiction to confiscate the land
under Rule 173Q (2), the said rule having been omitted
and substituted by Rule 28, by the time the Order dated
25.02.2006 was passed. The order being without
jurisdiction is nullity in the eye of law and thereby the
38
authorities cannot derive advantage of the order dated
25.02.2006.”
36. In the case at hand, the proceedings initiated under
the erstwhile Rule 173Q(2) would come to an end on
the repeal of the said Rule 173Q(2) of the Central
Excise Rules, 1944. Respondent Counsel’s submission
that the proceedings would be saved on account of
Section 38A(c) and 38A(e) of the Central Excise Act,
1944 and Section 6 of the General Clauses Act, 1897,
is misplaced and lacks statutory backing. Firstly, as
has been held by a Constitution Bench of this Court in
Kolhapur Canesugar Works Ltd. Vs Union of India
, Section 6 of the General
& Ors. [(2000) 2 SCC 536]
Clauses Act, 1897 is applicable where any Central Act
or Regulation made after commencement of the
General Clauses Act repeals any enactment. It is not
applicable in the case of omission of a "Rule". Hence,
the question of applicability of Section 6 is decided in
the negative. Secondly, on the issue of applicability of
Section 38A(c) and 38A(e) of the Central Excise Act,
39
1944, it is held that the Respondent would not be able
to enjoy its protection because Section 38A(c) and
38A(e) are attracted only when “unless a different
intention appears”. In the present case, the legislature
has clarified its intent to not restore/revive the power
of confiscation of any land, building, plant machinery
etc., after omission of the provisions contained in Rule
173Q(2) w.e.f 12.05.2000. This intention of the
legislature can be drawn out from the fact that power
to confiscate any land, building, plant, machinery etc.
after omission w.e.f. 12.05.2000 has not been
introduced in the subsequent Central Excise Rules,
2001, Central Excise Rules, 2002 and Central Excise
Rules, 2017. Additionally, this intent is also fortified by
the fact that Rule 211 of the Central Excise Rules,
1944, inter alia, provided that “anything” confiscated
under the Rules shall thereupon vest in Central
Government, whereas Rule 28 of the Central Excise
Rules of 2001, 2002 and 2017, which are pari materia
to the earlier Rule 211 of the 1944 Rules, instead of
the word “anything”, provided for vesting of confiscated
40
“Goods” in the Central Government. Lastly, after
omission of Rule 173Q(2) of 1944 Rules w.e.f.
12.05.2000 and after supersession of Rule 211 of 1944
Rules in the year 2001, the newly enacted Rule 28 of
the Rules of 2001, Rule 28 of the Rules of 2002 and
Rule 28 of the Rules of 2017, did not provide for
confiscation of any land, building, plant, machinery
etc. and their consequent vesting in the Central
Government, as Rule 28 only provided for vesting in
the Central Government of the “Goods” confiscated by
the Central Excise Authorities under the Excise Act,
1944. This derivation of the legislature’s intent, in
conjunction with the ratio laid in the case of Kotak
(supra) makes it apparent that the
Mahindra Bank
confiscation proceedings were not saved by these
mentioned provisions and that the final confiscation
order dated 26.03.2007 and 29.03.2007 were passed
without jurisdiction by the Commissioner of Central
Excise and Customs.
41
37. Secondly, coming to the issue of priority of secured
creditor’s debt over that of the Excise Department, the
High Court in the impugned judgment has held that
“In view of the matter, the question of first charge or
second charge over the properties would not arise.” In
this context, we are of the opinion that the High Court
has misinterpreted the issue to state that the question
of first charge or second charge over the properties,
would not arise.
A Full Bench of the Madras High Court in the case of
38.
UTI Bank Ltd. Vs. Dy. Commissioner Central Excise
while dealing with
[2006 SCC Online Madras 1182],
a similar issue, has held that:
“25. In the case on hand, the petitioner
Bank which took possession of the property
under Section 13 of the SARFAESI Act,
being a special enactment, undoubtedly is a
secured creditor. We have already referred
to the provisions of the Central Excise Act
and the Customs Act. They envisage
procedures to be followed and how the
amounts due to the Departments are to be
recovered. There is no specific provision
either in the Central Excise Act or the
Customs Act, claiming "first charge" as
provided in other enactments, which we
have pointed out in earlier paragraphs.
42
26. In the light of the above discussion, we
conclude,
“(i) Generally, the dues to Government, i.e.,
tax, duties, etc. (Crown's debts) get priority
over ordinary debts.
(ii) Only when there is a specific provision in
the statute claiming "first charge" over the
property, the Crown's debt is entitled to
have priority over the claim of others.
(iii) Since there is no specific provision
claiming "first charge" in the Central Excise
Act and the Customs Act, the claim of the
Central Excise Department cannot have
precedence over the claim of secured
creditor, viz., the petitioner Bank.
(iv) In the absence of such specific provision
in the Central Excise Act as well as in
Customs Act, we hold that the claim of
secured creditor will prevail over Crown's
debts."
In view of our above conclusion, the
petitioner UTI Bank, being a secured
creditor is entitled to have preference over
the claim of the Deputy Commissioner of
Central Excise, first respondent herein.”
(emphasis supplied)
This Court, while dismissing the Civil Appeal No.3627
of 2007 filed against the judgment of the Full Bench,
vide order dated 12.09.2009 held as under:
“Having gone through the provisions of the
Securitization Act, 2002, in light of the
43
judgment of the Division Bench of this court
in the case of Union of India vs Sicom Ltd. &
Anr., reported in 2009 (1) SCALE 10, we
find that under the provisions of the said
2002 Act, the appellants did not have any
statutory first charge over the property
secured by the respondent bank. In the
circumstances, the Civil Appeal is
dismissed with no order as to costs”
(emphasis supplied)
Hence the reasoning given by the High Court stands
strong and has been affirmed by this Court.
This Court, in
39. Dena Bank vs Bhikhabhai Prabhu
Dass Parikh & Anr. [(2000) 5 SCC 694], wherein the
question raised was whether the recovery of sales tax
dues (amounting to Crown debt) shall have precedence
over the right of the bank to proceed against the
property of the borrowers mortgaged in favour of the
bank, observed as under:
“10. However, the Crowns preferential right
of recovery of debts over other creditors is
confined to ordinary or unsecured creditors.
The common law of England or the
principles of equity and good conscience (as
applicable to India) do not accord the Crown
a preferential right of recovery of its debts
over a mortgagee or pledgee of goods or a
Secured Creditor.” (emphasis
supplied)
44
Further, in
40. Central Bank of India Vs. Siriguppa
Sugars & Chemicals Ltd. & Ors. [(2007) 8 SCC
while adjudicating a similar matter, this Court
353],
has held as under:
“18. Thus, going by the principles governing
the matter, propounded by this Court there
cannot be any doubt that the rights of the
appellantbank over the pawned sugar had
precedence over the claims of the Cane
Commissioner and that of the workmen.
The High Court was, therefore, in error in
passing an interim order to pay parts of the
proceeds to the Cane Commissioner and to
the Labour Commissioner for disbursal to
the cane growers and to the employees.
There is no dispute that the sugar was
pledged with the appellant bank for
securing a loan of the first respondent and
the loan had not been repaid. The goods
were forcibly taken possession of at the
instance of the revenue recovery authority
from the custody of the pawnee, the
appellantbank. In view of the fact that the
goods were validly pawned to the appellant
bank, the rights of the appellantbank as
pawnee cannot be affected by the orders of
the Cane Commissioner or the demands
made by him or the demands made on
behalf of the workmen. Both the Cane
Commissioner and the workmen in the
absence of a liquidation, stand only as
unsecured creditors and their rights cannot
prevail over the rights of the pawnee of the
goods.” (emphasis supplied)
45
The Bombay High Court in
41. Krishna Lifestyle
Technologies Ltd. Vs. Union of India & Ors. [2008
wherein the issue for
SCC Online Bombay 137],
consideration was “whether tax dues recoverable under
the provisions of The Central Excise Act, 1944 have
priority of claim over the claim of secured creditors
under the provisions of the Securitisation and
Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002” held that:
“Considering the language of Section 35
and the decided case law, in our opinion it
would be of no effect, as the provisions of
SARFAESI Act override the provisions of the
Central Sales Tax Act and as such the
priority given to a secured creditor would
override Crown dues or the State dues.
In so far as the SARFAESI Act is concerned
a Full Bench of the Madras High Court in
UTI Bank Ltd. v. Deputy Commissioner of C.
Excise, ChennaiII has examined the issue
in depth. The Court was pleased to hold
that tax dues under the Customs Act and
Central Excise Act, do not have priority of
claim over the dues of a secured creditor as
there is no specific provision either in the
Central Excise Act or the Customs Act giving
those dues first charge, and that the claims
of the secured creditors will prevail over the
46
claims of the State. Considering the law
declared by the Apex Court in the matter of
priority of state debts as already discussed
and the provision of Section 35 of
SARFAESI Act we are in respectful
agreement with the view taken by the
Madras High Court.”
(emphasis supplied)
42. An SLP (No. 12462/2008) against the above judgement
of the Bombay High Court stands dismissed by this
Court on 17.07.2009 by relying upon the judgement in
the matter of Union of India vs SICOM Ltd. & Anr.
Reported in [(2009) 2 SCC 121], wherein the question
involved was “Whether realization of the duty under
the Central Excise Act will have priority over the
secured debts in terms of the State Financial
Corporation Act, 1951” and this Court held as under:
“9. Generally, the rights of the crown to
recover the debt would prevail over the right
of a subject. Crown debt means the debts
due to the State or the king; debts which a
prerogative entitles the Crown to claim
priority for before all other creditors. [See
Advanced Law Lexicon by P. Ramanatha
Aiyear (3rd Edn.) p. 1147]. Such creditors,
however, must be held to mean unsecured
creditors. Principle of Crown debt as such
pertains to the common law principle. A
common law which is a law within the
47
meaning of Article 13 of the Constitution is
saved in terms of Article 372 thereof. Those
principles of common law, thus, which were
existing at the time of coming into force of
the Constitution of India are saved by
reason of the aforementioned provision. 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. (emphasis
supplied)
43. In view of the above, we are of the firm opinion that the
arguments of the learned counsel for the Appellant, on
the second issue, hold merit. Evidently, prior to
insertion of Section 11E in the Central Excise Act,
1944 w.e.f. 08.04.2011, there was no provision in the
Act of 1944 inter alia, providing for First Charge on the
property of the Assessee or any person under the Act of
1944. Therefore, in the event like in the present case,
where the land, building, plant machinery, etc. have
been mortgaged/hypothecated to a secured creditor,
having regard to the provisions contained in section
2(zc) to (zf) of SARFAESI Act, 2002, read with
provisions contained in Section 13 of the SARFAESI
48
Act, 2002, the Secured Creditor will have a First
Charge on the Secured Assets. Moreover, section 35 of
the SARFAESI Act, 2002 inter alia, provides that the
provisions of the SARFAESI Act, shall have overriding
effect on all other laws. It is further pertinent to note
that even the provisions contained in Section 11E of
the Central Excise Act, 1944 are subject to the
provisions contained in the SARFAESI Act, 2002.
44. Thus, as has been authoritatively established by the
aforementioned cases in general, and
Union of India
vs SICOM Ltd. (supra) in particular, the provisions
contained in the SARFAESI Act, 2002, even after
insertion of Section 11E in the Central Excise Act,
1944 w.e.f. 08.04.2011, will have an overriding effect
on the provisions of the Act of 1944.
45. Moreover, the submission that the validity of the
confiscation order cannot be called into question
merely on account of the Appellant being a secured
creditor is misplaced and irrelevant to the issue at
hand. The contention that a confiscation order cannot
49
be quashed merely because a security interest is
created in respect of the very same property is not
worthy of acceptance. However, what is required to be
appreciated is that, in the present case, the
confiscation order is not being quashed merely because
a security interest is created in respect of the very
same property. On the contrary, the confiscation
orders, in the present case, deserve to be quashed
because the confiscation orders themselves lack any
statutory backing, as they were rooted in a provision
that stood omitted on the day of the passing of the
orders. Hence, it is this inherent defect in the
confiscation orders that paves way for its quashing and
not merely the fact that a security interest is created in
respect of the very same property that the confiscation
orders dealt with.
Further, the contention that in the present case, the
46.
confiscation proceedings were initiated almost 89
years prior to the charge being created in respect of the
very same properties in favour of the bank is also
inconsequential. The fact that the charge has been
50
created after some time period has lapsed post the
initiation of the confiscation proceedings, will not
provide legitimacy to a confiscation order that is not
rooted in any valid and existing statutory provision.
47. To conclude, the Commissioner of Customs and
Central Excise could not have invoked the powers
under Rule 173Q(2) of the Central Excise Rules, 1944
on 26.03.2007 and 29.03.2007 for confiscation of land,
buildings etc., when on such date, the said Rule
173Q(2) was not in the Statute books, having been
omitted by a notification dated 12.05.2000. Secondly,
the dues of the secured creditor, i.e. the Appellant
bank, will have priority over the dues of the Central
Excise Department, as even after insertion of Section
11E in the Central Excise Act, 1944 w.e.f. 08.04.2011,
and the provisions contained in the SARFAESI Act,
2002 will have an overriding effect on the provisions of
the Central Excise Act of 1944.
48. Accordingly, the Appeal is Allowed and the confiscation
orders dated 26.03.2007 and 29.03.2007, passed by
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the Commissioner Customs and Central Excise,
Ghaziabad, are quashed.
………………………………..J.
[L. NAGESWARA RAO]
………………………………..J.
[VINEET SARAN]
New Delhi
Dated: February 24, 2022
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