UNION OF INDIA THROUGH THE ASSISTANT COMMISSIONER CGST AND CEX vs ANAM INDUSTRIES AND ORS on 1 November 2023

**ORDER**

1. 1. The Applicant has filed the present application seeking condonation of delay in preferring application u/s 19(25) of the Recovery of Debts and Bankruptcy Act, 1993 (hereinafter referred to as "RDB Act") and for other incidental reliefs.

1. 2. I have heard Ld. Counsel for the parties on the application for condonation of delay and perused the documents placed on record and I dispose of the application by this order.

2. 3. The Applicant, being Statutory Government Authority has filed the present application vide IA No.1036/2023 for condonation of delay in filing Appeal for challenging the order dated 30/08/2022 passed by Ld. Recovery Officer, DRT-II, Ahmedabad in RP No.9/2019, wherein the Ld. Recovery Officer, DRT-II, Ahmedabad, has allowed the Interim Application No.349/2022 filed by successful Auction Purchaser therein and confirmed the Auction Sale and also ordered that the third party purchaser is not liable to pay the Government dues like CGST & GEB and other dues.

3. 4. Ld. Counsel for the Applicant submitted that M/s J.N. Steel, was a defaulter of Central Excise and Customs Duty and a sum of Rs.2,12,86,752/- is pending against the said firm. He further submitted that vide the Deed of Assignment dated 09/03/2007 executed between M/s. J.N. Steel and M/s. Anam Industries (Respondent No.1 herein), the entire assets and liabilities of M/s. J.N. Steel were taken over by M/s. Anam Industries and against the said dues, subject property of M/s. Anam Industries was already attached and lien by the Applicant through filing the Form No.9,I&XIV before the Mamlatdar, Ahmedabad and the same was certified by Mamlatdar, Daman.

4. 5. He further submitted that the Applicant came to know about the said order dated 30/08/2022 passed by Ld. Recovery Officer, DRT-II,

Ahmedabad, only when the Auction Purchaser, Mr. Jayantibhai Lallubhai Ahir vide letter dated 20/07/2022 approached the Applicant to lift the lien on the said property which was sold by Auction on 15/06/2022 by Ld. Recovery Officer, DRT-II, Ahmedabad.

1. 6. He further submitted that the Applicant's Department has to follow the internal procedure for obtaining legal opinion from Ministry of Law and Justice, Department of Legal Affairs, Branch Secretariat, Mumbai, to take necessary action. Accordingly, the Applicant approached the Ministry of Law and Justice, Branch Secretariat, Mumbai, for legal opinion in the matter. Thereafter, the Ld. Additional Government Advocate and In-charge, Ministry of Law and Justice, Department of Legal Affairs, Branch Secretariat, Mumbai, issued the direction to approach Ld. Additional Solicitor General of India, Hon'ble High Court of Gujarat, for seeking opinion in the matter.

2. 7. The Applicant approached the Ld. Additional Solicitor General of India, Hon'ble High Court of Gujarat, Ahmedabad, and accordingly the Ministry of Law and Justice Br. Sectt. Mumbai appointed Mr. Parashuram S. Gujar, Panel Counsel and Mr. M.S. Bharadwaj, Sr. Panel Counsel for drafting and filing the Appeal and to represent the matter before this Tribunal on behalf of the Applicant.

3. 8. Ld. Counsel for the Applicant further submitted that the Applicant approached the Panel Counsel alongwith all the concerned documents and orders for drafting the Appeal on 14/10/2022. Accordingly, as per the guidelines given by the Panel Counsel, the Applicant filed the application before this Tribunal to obtain the certified copies of the order dated 30/01/2019 passed by this Tribunal in respect of Original Application No.46/2016 and orders dated 15/06/2022 and 30/08/2022 passed by Ld. R.O. Accordingly, the Applicant has filed the present Appeal along with delay condonation on 03/02/2023. Hence, it is further submitted that delay caused in filing the present Appeal may be condoned.

1. 9. Now the question of law arising in the present case is whether Section 5 of the Limitation Act, 1963 can be invoked to condone the prescribed period of 30 days, under Section 30(1) of the RDB Act for preferring an Appeal before the Tribunal, against an order of Ld. R.O.

2. 10. In this context, it would be appropriate to refer to the judgment of the Hon'ble Apex Court in the case of **International Asset Reconstruction Company of India Ltd. V/s. The Official Liquidator of Aldrich Pharmaceuticals Ltd. And others**, decided on 24/10/2017 in Civil Appeal No.16962 of 2017 (arising out of SLP (C) No.25815 of 2013). It has been held therein as under:

*"14. The RDB Act is a special law. The proceedings are before a statutory Tribunal. The scheme of the Act manifestly provides that the Legislature has provided for application of the Limitation Act to original proceedings before the Tribunal under Section 19 only. The appellate tribunal has been conferred the power to condone delay beyond 45 days under Section 20(3) of the Act. The proceedings before the Recovery officer are not before a Tribunal. Section 24 is limited in its application to proceedings before the Tribunal originating under Section 19 only. The exclusion of any provision for extension of time by the Tribunal in preferring an appeal under Section 30 of the Act makes it manifest that the legislative intent for exclusion was express. The application of Section 5 of the Limitation Act by resort to Section 29(2) of the Limitation Act, 1963 therefore does not arise. The prescribed period of 30 days under Section 30(1) of the RDB*

*Act for preferring an appeal against the order of the Recovery officer therefore cannot be condoned by application of Section 5 of the Limitation Act."*

1. 11. Considering the facts and circumstances of the case and applying the aforesaid law laid down by the Hon'ble Supreme Court of India, this Tribunal is of the opinion that condoning the delay in violation of the statutory provisions would tantamount to showing utter disregard to the legislature. Hence, the following order is passed:-

**ORDER**

1. 1. The Application for condonation of delay (Diary No.240/2023) is hereby dismissed with no order as to cost.

2. 2. File be consigned to records.

Pronounced in Open Court on this 01^st day of November, 2023.

(Laxman Madnani) Presiding Officer DRT-II, Ahmedabad

\*sruthi\*