V. Binu v. Commissioner of Customs and Central Excise, Calicut Commissionerate, Kozhikode; Assistant Commissioner of Central Excise, Palakkad Division No.1; K. Muraleedharan; Union of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 12TH DAY OF JUNE 2019 / 22ND JYAISHTA, 1941** ## **WP(C).No. 36222 of 2010** ## **PETITIONER/S:** **V. BINU, S/O. K. MURALEEDHARAN, A3, BUILTECH GREENS, MANAPULLYKAVU, PALAKKAD DISTRICT.** **BY ADVS. SRI.M.R.NANDAKUMAR SRI.SACHIN VYAS** ## **RESPONDENT/S:** - **1 THE COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, CALICUT COMMISSIONERATE, KOZHIKODE-673 001.** - **2 THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE, OFFICE OF THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE, PALAKKAD DIVISION NO.1, C.R. BUILDING, METTUPALAYAM STREET, PALAKKAD-678 001.** - **3 K. MURALEEDHARAN, "SREE PADMAM", EVER GREEN AVENUE, AISWARYA NAGAR, KUNNATHURMEDU, PALAKKAD DISTRICT-678 013.** - **4 THE UNION OF INDIA, REPRESENTED BY THE MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI.** **BY ADVS. R1 & R2 - SRI.THOMAS MATHEW NELLIMOOTTIL, SC R3 - SRI.SREEDHAR RAVINDRAN R4 - SRI. P.VIJAYAKUMAR, ASGI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.05.2019, THE COURT ON 12.06.2019 DELIVERED THE FOLLOWING:** W.P.(C) No.36222 of 2010 2 ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Ext.P1 notice issued to the petitioner by the 2[nd] respondent, i.e., the Assistant Commissioner of Central Excise, Palakkad, dated 22.l1.2010, whereby informed the petitioner that his father i.e., the 3[rd] respondent is liable to pay an amount of Rs.86,94,126/towards duty and Rs.86,94,126/- towards penalty, on account of the business conducted by the 3[rd] respondent, and further that the said person is not paying the amounts specified in the notice, the Department is proposing to proceed to attach the property mentioned in the said notice under the provisions of Sec.142(1) (c)(ii) of the Customs Act, 1962, read with Rule 4 of the Customs (Attachment of property of Defaulters for recovery of Customs Dues) Rules, 1995, as is made applicable to Central Excise matters by notification No.68/63-CE dated 04.05.1963, since the defaulter has transferred the property to the petitioner as per Document No.1436/2001 of SRO, Palakkad, and for other related reliefs. Brief material facts for the disposal of the writ petition are as follows: W.P.(C) No.36222 of 2010 3 2. Petitioner was assigned an extent of 11 cents of property with a residential house thereon by his father, the 3[rd] respondent, in the year 2001. Later, the business of the 3[rd] respondent ran into rough weather due to the strike that has occurred in the establishment and had to be closed down, thereby virtually rendering the 3[rd] respondent physically and financially unable to pay any amounts to the respondents. Matters beings so, petitioner is served with Ext.P1 notice by the 2[nd] respondent as per the provisions specified above, seeking to attach and sell his property to recover the dues of the 3[rd] respondent under the Central Excise Act. Similarly, Ext.P2 notice is issued to the 3[rd] respondent, directing the 3[rd] respondent to pay the afore-specified amounts within 7 days, failing which, proceedings will be initiated in order to recover the amounts in accordance with law. 3. The contention put forth by the petitioner is that, the provisions of Sec.142(1)(c)(ii) of the Customs Act, and Rule 9 of the Rules specified above are not applicable, to recover the dues under the Central Excise Act, and Sec.12 of the Central Excise Act does not empower the Central Government to adopt the above provisions of the Customs Act and the Rules 4 ## W.P.(C) No.36222 of 2010 to a proceeding under the Central Excise Act. Thus the notification issued by the Central Government to the extent to which it incorporates Sec.142(1)(b) and Sec.142(1)(c)(ii) of the Customs Act as applicable to proceedings under the Central Excise Act is void and beyond the powers conferred under Sec.12 of the Central Excise Act. Moreover, it is alternatively contended that, even if the above provisions are applicable, the property was obtained by the petitioner nearly 10 years ago, and therefore, cannot be proceeded against, in view of the fact that the transfer of the property to the petitioner is long prior to the notice issued to the 3[rd] respondent under Rule 4 of the Rules specified above. 4. A counter affidavit and additional counter affidavit are filed by respondents 1, 2 and 4, refuting the allegations and claims and demands raised by the petitioner. Among other contentions, it is stated that, the 3[rd] respondent was conducting a proprietary concern viz., 'Bhaskar Soap Works', and the unit owed the respondents a sum of Rs.173.88 lakhs by way of duty and penalty, and interest for the delayed payment of duty is also recoverable from the 3[rd] respondent. The Additional Commissioner of Central Excise, Calicut W.P.(C) No.36222 of 2010 5 Commissionerate, _vide_ Order-in-Original No.07/2007 dated 30.04.2007 had confirmed the demand raised on the 3[rd] respondent, the proprietor of the defaulter firm. The Commissioner (Appeals), Cochin has upheld the said Order-in-original _vide_ Order-in-Appeal No.01/2008 dated 15.01.2008. The appeal filed by the defaulter before the CESTAT, Bangalore was dismissed as per Final Order No.1105/2009 dated 14.09.2009, and therefore, the order has become final in the year 2009. 5. In the meanwhile, 3[rd] respondent has sold the land on which the factory stood, and therefore, the same could not be attached to recover the sum due to the Government. It is also stated that, the Department is at liberty to attach not only the movable or immovable property of the business of the defaulter but also the property owned by the proprietor of the defaulting firm including the one succeeded from him. It was revealed that the 3[rd] respondent had purchased the property in his name which was registered with Palakkad SRO. The said property was transferred to the petitioner by way of settlement deed, and the intention of the 3[rd] respondent was to defeat the recovery of the amounts from the 3[rd] respondent. W.P.(C) No.36222 of 2010 6 6. It is also pointed out that, by virtue of the notification issued by the Government of India, bearing No.68/63-CE dated 04.05.1963, the provisions of Sec.142 of the Customs Act, 1962 are made applicable to the Central Excise in respect of the recovery of the amounts due and also the Rules, 1995. Therefore, the amount which has fallen due from the 3[rd] respondent has become recoverable resorting to Sec.142(1)(c)(ii) of the Customs Act, 1962, and the Rules, 1995. It was thereupon that Ext.P1 notice is issued to the petitioner and Ext.P2 notice to the 3[rd] respondent to recover the amounts. It is also the case of the respondents that, since the property was transferred by the 3[rd] respondent to his son, the petitioner, without any monetary consideration, the Department is entitled to recover the amounts by attaching the property and selling the same. 7. In the additional counter affidavit, it is stated, it is clear from Ext.R1(a) produced along with the same, that there existed a dispute right from the issue of notice bearing No.1/91-92 dated 14.05.1991 and the case was in various stages of appeal till Order No.1771/96 dated 30.09.1996 was passed by the CEGAT for _de-novo_ adjudication. It is further submitted that, 7 W.P.(C) No.36222 of 2010 the Collector (Appeals) turned down the claim of the defaulter and decided against them. Then the defaulter approached this Court by filing O.P.No.7636 of 1997 against the order of the Collector (Appeals), and the said O.P. was dismissed by this Court only on 10.11.2004, evident from Ext.R1(b) judgment. Against the said judgment, defaulter filed W.A.No.1348 of 2005 before the Division Bench and the same was also dismissed on 03.08.2005, evident from Ext.R1(c). Therefore, it is the contention of the respondents that, since the issue was under consideration of this Court till 03.08.2005, only after the said date, Ext.R1(a) order in original No.2/2005 could be issued. 8. Challenging Ext.R1(a) order-in-Original, 3[rd] respondent preferred appeal before the Commissioner (Appeals) and the same was disposed of by Order-inAppeal No.308/2006 dated 05.05.2006, remanding the matter back to the adjudicating authority directing that once more the party be given an opportunity to substantiate their claim on account of notification No.28/64 dated 01.03.1964 for relevant period up to 1994, and also for consideration of their claim to exemption under Notification No.88/88 and as per the changes in the Tariff for the subsequent period, W.P.(C) No.36222 of 2010 8 evident from Ext.R1(d). Accordingly, the lower Authority after giving opportunity of personal hearing to the party, passed Order-in-Original No.7/2007-CE dated 30.06.2007, allowing attachment in terms of explanation 4(1) from the duty demanded at Rs.1,39,77,855/-, as per show cause notices and confirmed the duty of Rs.86,94,126/- under Sec.11A(2) of the Central Excise Act, 1944 and imposed a penalty of Rs.86,94,126/- under Rule 173Q of the Central Excise Rules, evident from Ext.R1(e). 9. Thereafter, challenging Ext.R1(e), the 3[rd] respondent filed appeal before the Commissioner (Appeals) and the Commissioner (Appeals) as per Orderin-Appeal No.1/2008 dated 15.01.2008 dismissed the appeal, evident from Ext.R1(f). Aggrieved, the 3[rd] respondent challenged the aforesaid order before the CESTAT, and the Tribunal as per the Final Order No.1105/2009 dated 18.08.2009 dismissed the appeal filed by the 3[rd] respondent, evident from Ext.R1(g). The 3[rd] respondent has not challenged Ext.R1(g), and therefore, the said order has become final and conclusive. In that view of the matter, it is clear that the dispute existed from 1991 onwards became final as per Ext.R1(g) order dated 18.08.2009. It is also W.P.(C) No.36222 of 2010 9 pointed out that, the attempt of the 3[rd] respondent was to defeat the creditor by alienating the property by executing a settlement deed in favour of his son, the petitioner. Other contentions are also raised justifying the action of issuing Ext.P1 notice to the petitioner. **==> picture [396 x 9] intentionally omitted <==** petitioner, learned Standing Counsel appearing for respondents 1, 2 and 4 and the learned counsel appearing for the 3[rd] respondent. Perused the pleadings and the documents on record. 11. The elaborate discussion of facts made above would make it clear that, the 3[rd] respondent owes duty and penalty to the 1[st] respondent on account of the business carried on by the 3[rd] respondent in the name and style 'Bhaskar Soap Works', Palakkad. It is also an admitted fact that, by virtue of Ext.R1(g) dated 18.08.2009, the issue has become final and conclusive, by which the 3[rd] respondent is liable to pay an amount of Rs.86,94,126/- towards duty and the equivalent amount towards penalty, in accordance with the provisions of the Central Excise Act. W.P.(C) No.36222 of 2010 10 12. The case put forth by the petitioner is that, the provisions of the Customs Act cannot be made applicable to the Central Excise Act, in order to attach the property of the petitioner and recover the amounts towards duty and penalty. On the other hand, contention advanced by respondents 1, 2 and 4 is that, the provisions of the Customs Act, 1962 and the Rules 1995 are made applicable to Central Excise matters by notification No.68/63-CE dated 04.05.1963. Section 142 of the Customs Act, 1962, reads thus: _“_ _**142. Recovery of sums due to Government**_ _(1) Where any sum payable any person under this Act including the amount required to be paid to the credit of the Central Government under section 28B is not paid,--_ _(a) the proper officer may deduct or may require any other officer of customs to deduct the amount so payable from any money owing to such person which may be under the control of the proper officer or such other officer of customs; or_ _(b) the Assistant Commissioner of Customs or Deputy Commissioner or Customs may recover or may require any other officer of customs to recover the amount so payable by detaining and selling any goods belonging to such person which are under the control of the Assistant Commissioner of Customs or Deputy Commissioner of Customs or such other officer of customs; or_ _(c) if the amount cannot be recovered from such person in the manner provided in clause (a) or clause (b),--_ _(i) the Assistant Commissioner of Customs or Deputy Commissioner of Customs may prepare a certificate signed by him specifying the amount due from such person and send it to the_ W.P.(C) No.36222 of 2010 11 _Commissioner of the district in which such person owns any property or resides or carries on his business and the said Commissioner on receipt of such certificate shall proceed to recover from such person the amount specified thereunder as if it were an arrear of land revenue; or_ _(ii) the proper officer may, on an authorisation by a Principal Commissioner of Customs or Commissioner of Customs and in accordance with the rules made in this behalf, distrain any movable or immovable property belonging to or under the control of such person, and detain the same until the amount payable is paid; and in case, any part of the said amount payable or of the cost of the distress or keeping of the property, remains unpaid for a period of thirty days next after any such distress, may cause the said property to be sold and with the proceeds of such sale, may satisfy the amount payable and the costs including cost of sale remaining unpaid and shall render the surplus, if any, to such person:_ _PROVIDED that where the person (hereinafter referred to as predecessor), by whom any sum payable under this Act including the amount required to be paid to the credit of the Central Government under section 28B is not paid, 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 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 the proper officer, after obtaining written approval from the Principal Commissioner of Customs or Commissioner of Customs, of the purposes of recovering the amount so payable by such predecessor at the time of such transfer or otherwise disposal or change._ _(d) (i) the proper officer may, by a notice in writing, require any other person from whom money is due to such person or may become due to such person or who holds or may subsequently hold money for or on account of such person, to pay to the credit of the Central Government either forthwith upon the money becoming due or being_ W.P.(C) No.36222 of 2010 12 _held, or at or within the time specified in the notice not being before the money becomes due or is held, so much of the money as is sufficient to pay the amount due from such person or the whole of the money when it is equal to or less than that amount;_ _(ii) every person to whom the notice is issued under this section shall be bound to comply with such notice, and in particular, where any such notice is issued to a post office, banking company or an insurer, it shall not be necessary to produce any pass book, deposit receipt, policy or any other document for the purpose of any entry, endorsement or the like being made before the payment is made, notwithstanding any rule, practice or requirement to the contrary;_ _(iii) in case the person to whom a notice under this section has been issued, fails to make the payment in pursuance thereof to the Central Government, he shall be deemed to be a defaulter in respect of the amount specified in the notice and all the consequences of this Chapter shall follow._ _(2) Where the terms of any bond or other instrument executed under this Act or any rules or regulations made thereunder provide that any amount due under such instrument may be recovered in the manner laid down in sub-section (1), the amount may, without prejudice to any other mode of recovery, be recovered in accordance with the provisions of that sub-section.”_ 13. The proviso thereto, as it stood then, makes it clear that, the said provision deals with recovery of the amount from the successor in interest of the property of any business establishment. It is an admitted fact that the business establishment and its properties were sold by the 3[rd] respondent prior to issuance of notice. The case put forth by the W.P.(C) No.36222 of 2010 13 petitioner is that, since no notice is served on the 3[rd] respondent prior to the transfer of the property by the 3[rd] respondent to the petitioner, the attachment sought to be made as per Ext.P1 notice cannot be sustained under law. In my considered view, the property was transferred to the petitioner as per Ext.P4 settlement deed dated 26.03.2001, by the 3[rd] respondent, out of love and affection, and without any consideration, just showing the market value of the property for the purpose of assessing the stamp duty. 14. It is also relevant to note that, the amounts became due during the year 1991, however, due to various proceedings that were pending before various statutory authorities and this Court initiated by the petitioner, the recovery notice could not be issued earlier. But, it is submitted that, the said property in question was purchased by the 3[rd] respondent in the year 1987 as per document No.347 of SRO, Palakkad, and the property was transferred in the year 2001, after the default occurred and notices were served on the 3[rd] respondent and pending proceedings, and therefore, the transfer was effected to defeat the creditor. Rule 9 of the Rules, 1995 is relevant to the context, which read thus: W.P.(C) No.36222 of 2010 14 _“_ _**9** . Private alienation to be void in certain cases.--(i) Where a notice has been served on a defaulter under Rule 4, the defaulter or his representative in interest shall not be competent to mortgage, charge, lease or otherwise deal with any property belonging to him except with the written permission of the Proper Officer._ _(ii) Where an attachment has been made under these rules, any private transfer or delivery of the property attached or of any debt, dividend or other moneys contrary to such attachment shall be void as against all claims enforceable under the attachment.”_ 15. Therefore, in my considered view, Sec.142(1) (c)(ii) of the Customs Act read along with Rule 9 of the Rules, 1995 empowers the Commissioner of Customs on receipt of a certificate from the Assistant Commissioner of Customs, specifying the amount due to recover from such person the amount specified in the certificate, or the proper officer may on an authorization in accordance with the power conferred under Sec.142(1)(c)(ii) and in accordance with the Rules, 1995, distrain any movable or immovable property under the control of the defaulter, detain the same until the amount is paid, and if it is not paid within thirty days next after any such distress, may cause the said property to be sold. Therefore, the contention advanced by learned counsel for the petitioner that the Assistant Commissioner has no power to distrain the property, is not sustainable, since it is clearly spelt 15 W.P.(C) No.36222 of 2010 out in Ext.P1 notice that the said officer is authorised by the Commissioner of Customs as per order No.1/2010 dated 29.07.2010 to issue a notice of recovery of Government dues and a notice in form Appendix-II to the 3[rd] respondent. It is pertinent to note that this aspect is never disputed by the petitioner. 16. As I have pointed out earlier, the transfer is effected by the 3[rd] respondent by executing a settlement deed in favour of the petitioner in the year 2001, i.e., 10 years after the duty as well as other amounts have fallen due against the 3[rd] respondent, and it can only be viewed as made to defeat the creditor. So also, as per Ext.R1(g), the proceedings have become final in the year 2009 and the property held by the proprietary concern was transferred by the 3[rd] respondent before the order was passed and the certificate could not be employed against the property of the proprietary concern. It is also clear that huge amounts are due from the 3[rd] respondent to the 1[st] respondent, which is a public money, and in accordance with Sec.53 of the Transfer of Property Act, 1882, any property transferred to defeat a creditor can be proceeded with in order to recover the amount to the W.P.(C) No.36222 of 2010 16 creditor. Section 53 of the T.P. Act reads as follows: _“_ _**53. Fraudulent transfer** .--(1) Every transfer of immovable property made with intent to defeat or delay the creditors of the transferors shall be voidable at the option of any creditor so defeated or delayed._ _Nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration._ _Nothing in this sub-section shall affect any law for the time being in force relating to insolvency._ _A suit instituted by a creditor (which term includes a decree-holder whether he has or has not applied for execution of his decree) to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor shall be instituted on behalf of, or for the benefit of, all the creditors._ _(2) Every transfer of immovable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee._ _For the purpose of this sub-section, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made.”_ On an evaluation of Sec.53 of the Transfer of Property Act, it is clear that, every transfer of immovable property made with the intent to defeat or delay the creditor shall be voidable at the option of any creditor so defeated or delayed. Therefore, when it is an admitted fact that the 3[rd] respondent has transferred the property without any consideration, in favour of his son, after the arrears have fallen due, it can only W.P.(C) No.36222 of 2010 17 be legally presumed that it was for the purpose of defeating the creditor, such a transfer was made. 17. Learned counsel for the petitioner has invited my attention to the judgment of this Court in ' _**Brijeesh Mohammed and Others v. Deputy Commissioner of Customs**_ _**and Others**_ ' [2013 KHC 35], wherein the question considered was in respect of the property held by legal-heir of the defaulter, and this Court found that the legal-heir has not succeeded to the estate of the deceased, so as to proceed under Sec.142(1)(c)(ii) of the Customs Act and the Rules, 1995, wherein paragraph 23 of the judgment is relevant, which reads thus: _“_ _**23** . Learned counsel for the Department, however, argues that since the prohibition under the Benami Prohibition Act does not apply to the transfer of property or purchase of property in the name of wife and children, they are only Benami persons or name-lenders of the defaulter and for that reason it is open for the Department to take action against the petitioners' property. I do not think so. As already indicated Department is confined to the provisions of the Act and unless it is established that the defaulter has the control of the property which was in the name of the petitioners, the same cannot be attached alleging that it was a benami transaction or a sham transaction and it was fraudulently made out to defeat the liability towards the Department. Learned counsel also relied upon the judgment in Pothen Joseph v. Eipe Annamma, 1951 KHC 105 : 1951 KLT 310 : 6 DLR TC 405 : AIR 1951 TC 237 to contend for the proposition that a creditor need not file a suit to avoid a transfer which is fraudulent under Sec.53 of the Transfer of Property Act. This proposition will not help the petitioner since that was a case in which decree was sought to be_ W.P.(C) No.36222 of 2010 18 _enforced against certain properties by contending that the said properties were transferred in violation of S.53 of the Transfer of Properties Act. A contention was urged that unless the sale deeds are set aside by a separate suit, no proceedings in attachment could be taken. In that case after referring to a Full Bench judgment of the Madras High Court in 'Ramaswamy Chettiar v. Mallappa Chettiar', ILR 43 Madras 760(FB), it was held that to avoid a transfer which is voidable under S.53 of the TP Act, it is not necessary that a separate suit should be filed and that it is enough that a creditor or creditors at whose instance the transfer is voidable repudiate the transfer by a unequivocal declaration in that regard. Therefore, it was held that the property could be attached in execution of the decree which itself amounts to repudiation. Jaya v. State of Kerala, 2005 KHC 691 : 2005(2) KLT 543 : ILR 2005 (2) Ker. 364 is relied upon for the proposition that even if the transfer of properties is effected much before service of demand on defaulter if the transfer is affected to a close relative, it would be a transfer with intent to defeat or delay the creditors unless the contrary is proved.”_ Therefore, even assuming that the property of the proprietary concern could be proceeded with, in terms of proviso to Sec.142 of the Customs Act, even after transfer, that by itself will not disable the proper officer to proceed against the defaulter and any property alienated to defeat a creditor, in accordance with law, which thus means, the provisions contained under the proviso is an option available to the proper officer to recover the amount, which can never be termed or treated as the sole method for recovery. So also, when there are options available for recovery of W.P.(C) No.36222 of 2010 19 the amount to a creditor, a debtor or a transferee of the property is not at liberty to insist the proper officer to confine his power to one of the options available. 18. So also, the contention advanced by the petitioner that the provisions of the Customs Act, i.e., Sec.142(1)(c)(ii) are not applicable by virtue of Ext.P3 notification issued under Sec.12, extending the provisions of the Customs Act, 1962 to the Central Excise Act cannot be sustained, since I find that the said notification was issued in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) Central Excise No.69/59 (G.S.R. No.822 of 1959), dated 18[th] July, 1959, and declared certain provisions of sub-section (1) of Section 105 and other provisions including Sec.142 of the Customs Act applicable to the Central Excise Act. However, it is clear from Ext.P3 notification that Notification No.68/63-CE dated 04.05.1963 was never superseded. Therefore, looking at any angle, the contention advanced by learned counsel for the petitioner that the provisions of the Customs Act cannot be made applicable for recovery of the amounts due from the 3[rd] respondent cannot be sustained under W.P.(C) No.36222 of 2010 20 law. Above all, the 3[rd] respondent debtor has not come forward to challenge the proceedings for obvious reasons, and I am also doubtful about the authority of the petitioner to attack the proceedings launched against the 3[rd] respondent especially during his life time. 18. Taking into account all these aspects and the legal circumstances discussed above, I am of the considered opinion that, petitioner has not made out any case so as to interfere with Ext.P1 notice issued by the 2[nd] respondent against the petitioner to proceed against the property held by the petitioner as per Ext.P4, since the property was transferred by the 3[rd] respondent in favour of the petitioner by a settlement deed without any consideration to defeat the recovery of amounts fallen due from the 3[rd] respondent, towards duty and penalty under the Central Excise Act. Accordingly, the reliefs sought for are declined. 19. In that view of the matter, while holding the position of law so, the 3[rd] respondent/petitioner will be at liberty to pay the outstanding amounts towards duty and penalty under the Central Excise Act to the competent among the respondents in six equal monthly instalments starting from 15.07.2019 and the W.P.(C) No.36222 of 2010 21 corresponding date of the succeeding months, and if the said amounts are paid, the attachment ordered against the petitioner shall be lifted. Enabling the petitioner to do so, the interim order granted by this Court on 13.12.2010, staying the operation of Ext.P1 and restraining the petitioner from alienating or encumbering the property covered by Document No.1436/01 of SRO, Palakkad, will continue to be in force. But, I make it clear that, if any of the instalments is defaulted, the proper officer will be at liberty to proceed against the property/properties and recover the amount in lump. The writ petition is disposed of accordingly. ## **Sd/-** ## **SHAJI P.CHALY** ## **JUDGE** St/- W.P.(C) No.36222 of 2010 22 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 PHOTOCOPY OF THE NOTICE ISSUED UNDER RULE 9 TO THE PETITIONER DATED 22/11/2010. EXHIBIT P2 PHOTOCOPY OF THE NOTICE ISSUED UNDER RULE 4 TO THE 3RD RESPONDENT DATED 22/11/2010. EXHIBIT P3 PHOTOCOPY OF THE NOTIFICATION NO.68/63 DATED 04/05/1963 AS AMENDED FROM TIME TO TIME.** - **EXHIBIT P4 PHOTOCOPY OF THE DOCUMENT NUMBER 1436/2001 OF SRO PALAKKAD DATED 26/03/2001.** - **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1(A) TRUE COPY OF ORDER-IN-ORIGINAL NO.2/2005 DATED 28/11/2005.** **EXHIBIT R1(B) TRUE COPY OF JUDGMENT DATED 10/11/2004 OF THIS HON'BLE COURT IN OP NO.7636/1997.** - **EXHIBIT R1(C) TRUE COPY OF JUDGMENT DATED 03/08/2005 OF THE DIVISION BENCH OF THIS HON'BLE COURT IN WA 1348/2005.** - **EXHIBIT R1(D) TRUE COPY OF ORDER-IN-APPEAL NO.308/2006 DATED 05/05/2006.** - **EXHIBIT R1(E) TRUE COPY OF ORDER-IN-ORIGINAL NO.7/2007 DATED 30/04/2007.** **EXHIBIT R1(F) TRUE COPY OF ORDER-IN-APPEAL NO.1/2008 DATED 15/01/2008. EXHIBIT R1(G) TRUE COPY OF FINAL ORDER NO.1105/2009 DATED 18/08/2009. EXHIBIT R1(H) TRUE COPY OF JUDGMENT DATED 14/02/2005 OF THIS HON'BLE COURT DOWNLOADED FROM WEBSITE.** //TRUE COPY// P.S. TO JUDGE St/-