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Judgment
Heard. Both the appeals are admitted on the following question of law.
Whether the Tribunal was justified in declining to stay the operation of the order-in-original dated 11-8-2009 during the pendency of the Appeal ?
By a common order dated 8th November, 2010 the CESTAT has declined to stay the order-in-original dated 11th August, 2009 whereby the plot bearing No. 143A in Government Industrial Estate at Kandivali (West) was held to be the property belonging to the tax defaulter namely Sensotherm India Pvt. Ltd. and not to Harish Chandra Gupta in whose name the share certificate in respect of the aforesaid plot stands.
The plot in question stands in the name of Harish Chandra Gupta, father-in-law of the appellants. When the plot in question was attached, the appellants contended that for recovering the tax arrears of the company the flat belonging to their father-in-law who was the erstwhile director of the company could not be attached. The Commissioner of Central Excise by his order dated 11th August, 2009 rejected the contentions of the Appellants and held that the said property belongs to the tax defaulter company. On Appeal filed by the assessee along with stay application, the CESTAT by the impugned order held that prima facie the plot in question belongs to the tax defaulter company and accordingly declined to grant stay during the pendency of the Appeal. Challenging the aforesaid order, present Appeals are filed.
Admittedly the Appellants are in possession of the plot in question and during the pendency of the Appeal if the plot in question is auctioned and third party rights are created, then, in the event the appeals are allowed, grave prejudice will be caused to the appellants. In this view of the matter, the question raised in these Appeals is answered by holding that the Tribunal was not justified in refusing to stay the order-in-original dated 11-8-2009. In our opinion, in the facts of the present case, it would be just and proper to stay the operation of the order-in-original till the disposal of the appeals. The Tribunal is directed to hear the above Appeals on merits expeditiously.
It is made clear that during the pendency of the Appeal, attachment levied on 22-7-2005 shall continue to be in enforce. The Respondents shall not enforce the demand during the pendency of these appeals and the Appellants during the pendency of the appeals shall not alienate, dispose off, encumber, transfer, sell or create any third party rights in the plot in question without the written permission of the respondents.
Both the Appeals are disposed of accordingly with no order as to costs.