Liability of an auction purchaser under the State Act and the Central Excise Act, and the precedence of special enactments when no conflict arises.

Judgement

ORDER :- An Industrial unit run by M/s. Diamond Marbles Pvt. Ltd.-respondent No. 4 was brought to sale in terms of Section 29 of the State Financial Corporation Act, 1951 (for short, the State Act) by Rajasthan Financial Corporation-respondent No. 3. Appellant before us participated in auction and its bid having been accepted took possession of the said unit on 28-8-1987 pursuant to the agreement entered into between them. On 4-12-1987, the Additional Collector of Central Excise adjudicated in a proceeding arising out of show cause notice issued under Section 11-A of the Central Excise Act to respondent No. 4 in relation to certain goods that are said to have been removed between 13-8-1986 and 23-8-1986 and excise duty of Rs. 1,04,586.17 and penalty of Rs. 3 lakhs was levied and demanded.

2. A letter was sent by the Central Excise Department to the appellant demanding a sum of Rs. 4,07,291.75 pursuant to the adjudication order made against respondent No. 4. The appellant in his letter to the Department contended that it had no liability to pay the excise dues of respondent No. 4. The Department not having acceded to it, a writ petition was filed in the High Court challenging the recovery proceedings initiated by the Department. However, the said amount was paid. In the writ petition several contentions were raised, including the question that the liability is only that of respondent No. 4 and not of the appellant; that appellant having taken over the unit from the third respondent, had no liability to pay the excise dues; that Rule 230(2) of the Central Excise Rules, 1944 has no application to the present case. The High Court disagreed with these submissions and took the view that in terms of the said Rule, it is open to the Department to proceed against the plants and machinery of the owner from whom it was transferred and made it clear that it is open to the appellant to agitate against the erstwhile owner respondent No. 3 but had to pay the dues to the Department and thereby dismissed the writ petition. Hence this appeal by special leave.

3. In this appeal, Ms. Radha Ranga-swamy, learned counsel for the appellant very strenuously contended that in view of Section 46-B of the State Act it would prevail over the Central Excise Act and relied upon the decision of this Court in Sitani Textiles and Fabrics (P) Ltd. v. Asstt. C. of Cus. and C.E., Hyderabad, 1999 (106) ELT 296. She submitted that as the State Act is a special enactment and Central Excise Act is a general enactment, the State Act would prevail over the same. It is brought to our notice that this aspect is under consideration in another matter before this Court. It is also submitted that as held in N. B. Sanjana, Assistant Collector of Central Excise, Bombay and others v. The Elphinstone Spinning and Weaving Mills Co. Ltd., 1978 ELT (J 399) the penalty was not attracted in the present case at all. She also relied upon the decision of this Court in Isha Marbles v. Bihar State Electricity Board and another, (1995) 2 SCC 648 to contend that in case of sales effected under Section 29(1) of the State Act, the recovery of dues of previous owner from the auction purchaser could not be made.

4. Now taking the last contention first we may notice that this Court in Isha Marbles considered the scope of Section 24 of the Electricity Act and held that there is no charge over the property in question and when a premises comes to be owned or purchased by the auction purchaser, he cannot be called upon to clear the past arrears when such purchaser seeks supply of electric energy or it is made clear in that decision that what matters is the contract entered into by the erstwhile consumer with the Board and the Board cannot seek the enforcement of contractual liability against the third party. Therefore, this decision in Isha Marbles cannot be taken advantage of by the appellant at all in this case.

5. In this case the liability arises under the Central Excise Act and Rule 230(