THE HONOURABLE SRI JUSTICE P.SAM KOSHY AND THE HONOURABLE SRI JUSTICE N. TUKARAMJI Writ Petition No.12713 of 2006 ORDER: (per Hon’ble Sri Justice P.SAM KOSHY This Writ Petition is filed by the petitioner herein under Article 226 of the Constitution of India praying this Court for issuance of an appropriate writ, order or direction particularly one in the name of Writ of Mandamus by declaring the demand Notice vide C.No.HQ/TRC/18/2006, dated 20.04.2006, issued by the 3^rd respondent (for short, ‘the impugned notice’) as illegal, arbitrary, unconstitutional, without jurisdiction, void ab initio, and violative of petitioner’s fundamental rights guaranteed under Articles 14 & 21 of the Constitution of India; and to set aside the same.

2. Heard Mr.D. Seshasayana Reddy, learned counsel for the petitioner and Mr.Dominic Fernandes, learned Senior Standing Counsel for Central Board of Indirect Taxes, for the respondents. 3. Learned counsel for the petitioner contended that the 3^rd respondent herein has issued the impugned notice claiming for the pending of arrears as against M/s.Deccan Foam Plastics Private Limited, which was subsequently purchased by the petitioner Society herein, for the purpose of establishing a society for education. The said M/s.Deccan Foam Plastics Private Limited committed default in repayment of the dues payable to respondent No.4 herein. The respondent No.4, on the default on the part of M/s.Deccan Foam Plastics Private Limited, took over the land, building and assets that stood in the name of M/s.Deccan Foam Plastics Private Limited. When the entire premises got put to open auction conducted by respondent No.4, the petitioner was the successful bidder and purchased the land, building along with plant and machinery belonging to M/s.Deccan Foam Plastics Private Limited. Since then, it is operated by the petitioner-Society.

4. Learned counsel for the petitioner further submitted that the impugned demand notice came to be issued by the 3^rd respondent directing the petitioner herein to clear of all the dues payable by M/s.Deccan Foam Plastics Private Limited.

5. Aggrieved, the present writ petition is filed by the petitioner.

6. Learned counsel for the petitioner submitted that the issue involved in the present writ petition is squarely covered by a judgment rendered by a Division Bench of this Court in a batch of Writ Petitions, viz., Writ Petition Nos.3428 of 2007, 5247 of 2006, 6180 of 2007 & 18108 of 2007, dated 15.11.2022, wherein the Division Bench, by relying upon a series of decisions, has in very categorical terms held that a demand notice against the subsequent purchasers who had purchased the property by way of an open auction cannot be held to be sustainable qua the attachment of the previous owner of the establishment who was the original defaulter.

7. On the other hand, learned Standing Counsel for the respondent-Department, referring to the counter-affidavit, submitted that the impugned demand notice was in terms of proviso to Section 11 of the Central Excise Act, 1944.

8. However, when we look into the judgment rendered by the learned Division Bench of this Court in the aforesaid batch of matters, we find that this aspect has also been considered by the Hon’ble Apex Court in Rana Girders Limited vs. Union of India, [(2013) 10 S.C.C. 746], Macson Marbles (P) Ltd. vs. Union of India, [(2008) 15 S.C.C. 481] and Union of India vs. SICOM Limited3. For ready reference,

3 (2009) 2 S.C.C. 121

paragraph Nos.10 and 11 of the aforesaid judgment is extracted as under :

“10. In the course of the hearing today, we find that issue raised in this batch of writ petitions has been answered by the Supreme Court in Rana Girders Limited v. Union of India. That was also a case where similar notice was challenged by the auction purchaser. The notice was issued to the auction purchaser because the borrower had failed to discharge the excise duty liability. Supreme Court considered two earlier decisions in Macson Marbles (P) Ltd.