JUDGMENT :

S.V. Gangapurwala, J.

Rule. Rule made returnable forthwith. With the consent of parties taken up for final hearing.

2. The petitioner is a purchaser of the movable and immovable assets of the respondent No.5/Karkhana in an auction proceedings at the behest of the respondent No. 6/bank under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (for short “Securitization Act”). The respondent Nos. 2 and 3 are claiming the recovery of excise dues outstanding against the respondent No. 5/Karkhana from the petitioner. The petitioner assails the said action in the instant petition.

3. Mr. Suryawanshi, the learned advocate for the petitioner submits that, the petitioner is a bonafide purchaser in the auction conducted by the respondent No. 6/bank of movable and immovable assets of the respondent No. 5 under the Securitization Act. The dues of the secured bank shall have priority claim over the excise department. The learned counsel to buttress his submissions relies on the judgment of the Division Bench of this Court in a case of National Steel and Agro Industries Limited Mumbai Vs. State of Maharashtra and others reported in 2015 (2) AIR Bombay Report 805, so also another judgment of the Division Bench of this Court in a case of Sherwood Resorts Pvt. Ltd. and another Vs. State of Maharashtra and others reported in (2016) 161 AIC (Sum 2) 1 and another judgment of the Division Bench of this Court in a case of M/s Sonoma Management Partners Pvt. Ltd. Vs. Bank of Maharashtra through its Chairman and others decided on 22.11.2016 in Writ Petition No. 4188 of 2014.

4. According to the learned counsel, the Excise Department did not attach the properties of the respondent No. 5/Karkhana purchased by the petitioner. The dues of the Excise Department were never notified as encumbrance over the property in the sale certificate, nor in the sale deed pursuant to which the petitioner has purchased the property.

5. Mr. Ladda, the learned advocate for respondent Nos. 2 to 4/Excise Department submits that, the respondent No. 5 assessee did not pay the total dues of the respondents i.e. Rs. 26,14,644/plus mandatory penalty of Rs. 26,29,644/and interest. The respondent No. 6/bank had the knowledge of the outstanding dues of the Central Excise Department. The respondent No. 4 issued letters to the respondent No. 5/Karkhana and the District Deputy Registrar, Cooperative Societies, Latur, who was acting as administrator/liquidator of the respondent No. 5. The administrator/liquidator of the respondent No. 5 was having the knowledge of confirmed demand of Central Excise Department. The tender notice published by the respondent No. 6/bank for sale of the respondent No. 5 is with the note that the property is sold on as is where is basis and with unknown encumbrances not known by the bank. After the purchase, the petitioner also approached the respondent No. 4 for Central Excise and Service Tax registration. Unless and until the earlier dues of the respondent No. 5 are recovered and unless the old registration in the name of the respondent No. 5 is cancelled, it is not possible to continue the second fresh registration in the name of the petitioner for the said premises again. In view of the clause in the tender, the purchaser of the respondent No. 5 is liable to pay the Central Excise dues as per the provisions of Sec. 11E of the Central Excise Act and also similar provisions under the Finance Act, 1994. The sale certificate for movable property issued does not speak about unknown encumbrances, which ought to have been considered by the respondent No. 6/bank while arriving at reserve price of Rs. 2303.91 Lakhs.

6. The learned counsel further submits that, the petitioner participated in tender accepting the clause in the tender that the property is sold on as is where is basis with unknown liability. The dues of the Central Excise Department are government dues. The judgments relied by the p