Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

Comments

Print   |    |  Comment

PJ/Case Laws/2011-12/1330

Crown Debts (Unsecured Loans) versus Secured debts

Case: UNION OF INDIA LTD v/s SICOM LTD
 
Citation: 2008-TIOL-225-SC-CX
 
Issue:- Whether realization of duty under the Central Excise Act will have priority over secured debts in terms of the State Financial Corporation Act, 1951?
 
Brief Facts:- Respondent No.2 borrowed a sum of Rs.51,00,000/- from First Respondent by an Indenture of Mortgage executed on 22.12.1986. Indisputably, the mortgage created under the said document is governed by the provisions of the State Financial Corporation Act, 1951. It also owed a sum of Rs.19,00,000/- by way of Central Excise duty for the period April 1983 to May 1988. Assessment of central excise duty for the said sum was confirmed.
 
The Government has extended the provisions of Sections 27, 29, 30, 31, 32A to 32F, 41 and 41A of the Act of 1951 in favour of the respondent by the Government of India in exercise of its power conferred upon it under sub-section (1) of Section 46 of the said Act by issuing an appropriate notification.
 
Respondent No.2 committed defaults in repayment of the principal amount of loan and also the interest accrued thereon. The first respondent invoked Section 29 of the 1951 Act by issuing notice to take possession of the said securities. Actual physical possession of the mortgaged assets was taken over. Respondent No.2, however, continued to commit defaults as a result whereof the first respondent recalled the entire amount of loan wherefore a notice dated 19th March, 1996 was served.
 
Respondent No.2 owed a sum of Rs.48,08,242/- to the Appellant i.e. Revenue Department. Appellant expressed its intention to attach and seize its properties. First Respondent, however, by its letter dated 11.11.1996 informed them that they had the first charge of the said properties which are mortgaged in their favour. Despite the same, the appellant expressed intention to proceed to recover the amount from the said properties. First Respondent, by its letters dated 21.7.2000 and 22.8.2000 followed by a lawyer's notice, called upon the appellants to desist from taking any action against their securities and to remove their seal, if any, from the properties of the borrower. As the appellant did not respond thereto, a writ petition was filed.
 
High Court considered a large number of decisions and held that despite the fact that the dues of excise department were recoverable as land revenue in terms of Rule 213 (2) of the Central Excise Rules read with Section 32 (g) and Section 151 of the Maharashtra Land Revenue Code, 1966, the same by itself would not mean that a first charge of the appellant would give way thereto. It was held that though the arrears of revenue which will be treated as arrears of land revenue will have paramount charge on the land or part thereof but the other claims of State Government which are secured loans will have priority over all unsecured claims against any land of holder. It was held that “In case of secured loan of the Government and other creditors, priority will depend upon precedence of such loan, it is thus clear that security of the Corporation being prior in point of time, it being in the nature of mortgage of priority, the dues claimed by Corporation will have priority over the dues of Customs”.
 
Aggrieved by the judgment of the High Court, Revenue filed appeal before the Supreme Court.
 
Appellant’s Contention:- Revenue contended that the crown debt and, in particular, arrears of tax will have a priority over all other. Revenue placed strong reliance in this behalf upon decision of this Court in Macson Marbles Pvt. Ltd. v. Union of India [2003 (158) ELT 424 (SC)].
 
Strong reliance was also placed on Union of India v/s Somasundaram Mills (P) Ltd & Anr [(1982) 2 SCC 40)] with regard to Section 73 (2) and (3) of Code of Civil Procedure held that debts due to the State are entitled to priority over all other debts.
 
Respondent’s Contention:- First Respondent argued that principle that a crown debt prevails over other debts is confined only to the unsecured ones as secured debts will always prevail over a crown debt. They drew attention to the non obstante clause contained in Section 56 of the 1951 Act. It was furthermore contended that for the self-same reason Section 529A in the Companies Act was inserted in terms by way of special provisions creating charge over the property and some of the State Governments also amended their Sales Tax Laws incorporating such a provision. The Central Government also with that view amended the Employees Provident Fund and (Miscellaneous) Provisions Act, 1952 and Employees State Insurance Act, 1948.
 
Reasoning of Judgment:- The Supreme Court held that generally, the rights of the crown to recover the debt would prevail over the right of a subject. Crown debt means the debts due to the State or the king; debts which a prerogative entitles the Crown to claim priority for before all other creditors. Such creditors, however, must be held to mean unsecured creditors. Principle of Crown debt as such pertains to the common law principle. A common law which is a law within the meaning of Article 13 of the Constitution is saved in terms of Article 372 thereof.
 
Those principles of common law, thus, which were existing at the time of coming into force of the Constitution of India, are saved by reason of the aforementioned provision. A debt which is secured or which by reason of the provisions of a statute becomes the first charge over the property having regard to the plain meaning of Article 372 of the Constitution of India must be held to prevail over the Crown debt which is an unsecured one. It is trite that when a Parliament or State Legislature makes an enactment, the same would prevail over the common law.
 
Thus, the common law principle which was existing on the date of coming into force of the Constitution of India must yield to a statutory provision.
 
The Supreme Court examined the judgments given in M/s Builders Supply Corporation v/s Union of India & Ors [AIR 1965 SC 1061], Bank of Bihar v.s State of Bihar & Ors [AIR 1971 SC 1210], Dena Bank v/s Bhikhabhai Prabhudas Parekh * Co. & Ors [(2000) 5 SCC 694], Sitani Textiles & Fabrics (P) Ltd v/s Asstt. Commissioner of Customs & Central Excise Hyderabad-I [1999 (106) ELT 296 (AP)], Bank of India v/s Siriguppa Sugars & Chemicals Ltd [(2007) 8 SCC 353], State Bank of Bikaner & Jaipur v/s National Iron & Steel Rolling Corporation & Ors [(1995) 2 SCC 19], ICICI Bank Ltd v/s Secretary, Ministry of Commerce [2005 (187) ELT 12 (Kar)].
 
The Supreme Court held that this court in the case of Union of India v/s Somasundaram Mills (P) Ltd & Anr were dealing with conflict of interest between a secured creditor and an unsecured creditor and not with the question of law involved in the present case.
 
With regard to judgment of Macson Marbles Pvt Ltd relied upon by appellant-revenue, it was held that the issue being dues under Central Excise Act were held recoverable from an auction purchaser, the said judgment was delivered on the facts of that case and the issue in this appeal was not directly involved. Also, the binding precedent of Dena Bank was also not noticed.
 
The Supreme Court perused the provisions of Section 11 of the Central Excise Act, 1944 and held that a bare perusal of the same clearly showed that the right to recover must start with sale of excisable goods. It is only when the dues of Central Excise Department are not satisfied by sale of such excisable goods, proceedings may be initiated to recover the dues as land revenue.
 
The Supreme Court noted that in the judgment given in Suburban ply & Panels Pvt Ltd v/s Assistant Commissioner of Central Excise & Customs, BBSR [2002 (144) ELT 257 (Ori)] by the Division bench of the High Court did not notice the judgment in Dena Bank and other decisions.
 
The Right of a State Financial Corporation is a statutory right.
 
In the end, it was held that the non-obstante clause contained in Section 46B of the State Financial Act will prevail over the contract as well as on other laws. {Periyar & PareekanniRubber Ltd v/s Stateof Kerala [2008 (4) SCALE 125]}.  
 
Decision:- Appeal dismissed accordingly.
 
Comment:- This is a very important decision which will bring great relief to banks and financial institution. They are normally secured debtors and their right will prevail over the right to crown. 

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com