Can a manufacturer, who does not manufacture excisable products be construed as an “Assessee” under the Central Excise Act, 1944?

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO. 1335 OF 2009

M/s Runwal Constructions,
A Partnership Firm,
duly registered under the Indian Partnership
Act 1932
having its office at Runwal Chambers,
1
st Road, Chembur, Mumbai – 400 071.
…Petitioner

Versus

1) Union of India
…Respondents

2) The Office of the Assistant Commissioner
of Central Excise, Mulund Division,
Mumbai III,
Commissionerate

3) M/s. Bluemoon Engineers Limited
a Company incorporated under the provisions
of Indian Companies Act 1956
(formerly known as HMP Engineering)
Limited and having its registered office
at 5A, Chowringhee Lane 1st Floor,
Flat No. 1A, Kolkata 700 016.

Mr. Vikram Nankani, Sr. Adv. a/w Mr. Saket Mone and Mr. Subit
Chakrabarti i/by Vidhii Partners - Advocate for the Petitioner
Mr. Sham Walve a/w Ram Ochani - Advocate for the Respondents

CORAM : SUNIL P. DESHMUKH &
ABHAY AHUJA, JJ.

RESERVED ON : 18th MARCH, 2021
PRONOUNCED ON : 22nd APRIL, 2021.

JUDGMENT ( Per Abhay Ahuja, J. )

1 By this petition filed under Article 226 of the Constitution of India, 1950, the Petitioner is challenging notices dated 29th / 30th January, 2008, 17th October, 2008 and 14th May, 2009 by which the Respondent No. 2 purports to prohibit and/or restrain Petitioner from transferring or charging the property situated at Mulund, Mumbai for alleged non-payment of Excise duty by Respondent No. 3.

2 Petitioner has filed the petition for following principal relief:

a) Issue Writ of Certiorari and/or any other appropriate writ, order or direction in the nature of Certiorari calling for the papers and proceedings relating to the impugned notices dated 29th / 30th January, 2008, 17th October, 2008 and 14th May, 2009 Exhibits “G”, “I” and “K” hereto and after examining the legality and validity thereof, this Hon’ble Court be pleased to quash and set aside the same.

3 Petitioner, is a Partnership firm registered under the Indian Partnership Act, 1932 and carries on business of construction and development. 2nd Respondent is the office of the Assistant Commissioner of Central Excise having claim of Excise duty dues against Respondent No. 3 viz. M/s. Bluemoon Engineers Limited ( earlier known as “HMP Engineering Ltd.” ) and is now claiming the same from the Petitioner

4 It appears that certain property admeasuring 24,280.94 square meters situated at Mulund, Mumbai (the “said property”) belonging to company known as M/s. HMP Engineering Ltd., (name was subsequently changed to Blue Moon Engineers Ltd. i. e. Respondent No.3 ) had been mortgaged to Indian Bank (for short “the Bank”) as security for certain facilities provided by the Bank to Respondent No. 3 -Company. In exercise of its rights as a mortgagee, the Bank intended to sell said property to recover its dues from Respondent No. 3.

5 At an auction conducted by the Debt Recovery Tribunal ( for short “DRT’ ), Kolkata, Petitioner’s offer was accepted. Petitioner was declared successful bidder. The same was confirmed by the DRT by an order of confirmation of sale dated 14.09.2004 and vide Certificate of Sale of immovable property dated 05.11.2004, it was certified that by aforesaid order of the DRT, Petitioner was declared purchaser of the property for a consideration of Rs. 12 crores paid by the Petitioner.

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