JUDGMENT
M.S. Sanklecha, J.
Rule, with the consent of counsel for the parties returnable forthwith. With the consent of counsel and at their request the petition is taken up for hearing and final disposal.
2. By this petition under article 226 of the Constitution of India the petitioner is challenging the following:
(a) A notice of demand dated May 9, 2011, in pro forma Appendix II of the Customs (Attachment of Property of Defaulters for Recovery of Government Dues) Rules, 1995, to the late father of the petitioner, Balram P. Mukherjee issued by the Assistant Commissioner of Central Excise;
(b) A communication dated May 26, 2011, issued by the Deputy Commissioner of Central Excise directing the petitioner to pay the dues of M/s. Verma Mukherjee P. Ltd., along with interest in view of a notice of demand to the defaulter dated May 9, 2011 ;
(c) A Certificate No. 01/2011-12 dated May 2, 2011, forwarded by the Deputy Commissioner of Central Excise, Kurla Division, Mumbai II to the Deputy Commissioner of Central Excise, Chembur II, Mumbai II ;
(d) A communication dated June 7, 2011, from the Deputy Commissioner of Central Excise seeking information from the petitioner about herself and her late father;
(e) A notice of attachment dated July 1, 2011, issued to the petitioner and her late father Balram P. Mukherjee in pro forma Appendix IV of the Customs (Attachment of Property of Defaulters for Recovery of Government Dues) Rules, 1995, by the Deputy Commissioner of Central Excise attaching his property ; and
(f) A notice of attachment dated December 14, 2011, issued to the petitioner in pro forma Appendix IV of the Customs (Attachment of Property of Defaulters for Recovery of Government Dues) Rules, 1995, attaching the property at Plot No. 113, at village Vadhavali, Chembur by the Assistant Commissioner of Central Excise.
3. The brief facts leading to the present petition are as follows :
(a) The father of the petitioner, late Balram Priyanath Mukherjee, was during his lifetime a director of Verma Mukherjee P. Ltd. (“the company”). The company was engaged in the business of processing grey fabrics on job work basis, and had obtained registration as manufacturer under the Central Excise Act, 1944 (“the Act”). Balram P. Mukherjee died on September 4, 2011.
(b) The deceased also at one time owned a property situated at 3/4 Union Park, S. T. Park, Chembur, Mumbai-400 071, described as at Plot No. 113, at village Vadhavali, Chembur in the attachment notice dated December 14, 2011. On September 20, 2009, Balram P. Mukherjee during his lifetime had by a deed of gift dated September 20, 2009, gifted the said property to his daughter, the petitioner herein.
(c) On May 9, 2011, a notice of demand was addressed to the petitioner’s father, being a notice to defaulter in form Appendix II by the Assistant Commissioner of Central Excise. The aforesaid notice of demand was in terms of section 142(1)(c)(ii) of the Customs Act, 1962, read with rule 4 of the Customs (Attachment of Property of Defaulters for Recovery of Government Dues) Rules, 1995 (“the Recovery Rules, 1995”) calling upon the petitioner’s father to pay Central excise duty amounting to Rs. 71,68,243 and penalty of Rs. 2,5000 on the basis of a Certificate No. 1/2011-12 dated May 2, 2011. The aforesaid notice called upon the petitioner’s father to pay duty along with interest thereon and penalty within seven days from the date of service of the notice, failing which recovery proceedings under the Recovery Rules, 1995, were threatened.
(d) Thereafter, on May 26, 2011, the Deputy Commissioner of Central Excise issued a notice to the petitioner informing the petitioner that there were arrears of Rs. 71,68,243 as duty and Rs. 25,000 as penalty payable by the said company of which the petitioner’s father was a director. By the aforesaid notice, the petitioner was informed that arrears of duty and penalty are recoverable from the company ; in the Municipal record the property stands in the name of the petitioner’s father and as she was in occupation of the said property, a notice of demand dated May 9, 2010, was enclosed to a letter dated May 26, 2000. The above communication further directed the petitioner to pay dues along with interest failing which, it was stated, the procedure for attachment under the Recovery Rules, 1995 would follow. On June 4, 2011, the petitioner by a letter addressed to the Deputy Commissioner of Central Excise pointed out that she is the daughter of Balram P. Mukherjee and presently owned the said property. The petitioner further pointed out that neither she nor her father was a defaulter of Excise duty under section 142(1) of the said Act or under the Recovery Rules, 1995, as is evident form the notice itself which very clearly states that the arrears of duty and penalty are recoverable from the company. In the circumstances, the respondents were requested to refrain from taking coercive measures for recovery of duty and penalty from the petitioner.
(e) Thereafter, on July 1, 2011, the Deputy Commissioner of Central Excise served a notice of attachment under the Recovery Rules, 1995, at the petitioner’s address to the petitioner’s father and the petitioner. By the notice, the petitioner was informed that property has been attached and in terms of rules 9 and 10 of the Recovery Rules, 1995, the petitioner was prohibited from in any manner dealing with and/or transferring her interest in the property. Thereafter, on December 27, 2011, a notice of attachment dated December 14, 2011, was addressed to the petitioner as daughter of the late Balram Mukherjee to prohibit the petitioner from in any manner dealing with and/or transferring her interest in the said property without the permission of the Excise Department.
(f) It is on the aforesaid facts that the petitioner has come to court seeking to quash the recovery proceedings against her under the Recovery Rules, 1995.
4. The respondents have filed an affidavit in reply dated February 2, 2011, of the Assistant Commissioner of Central Excise to the present petition in this court. The respondents have stated that the amounts of Rs. 71,68,243 as duty and Rs. 25,000 as penalty are arrears of the company. The affidavit also points out that by an agreement dated March 21, 2000, entered into between Mukherjee brothers and Kapoor family who together controlled the said company, the shares of the Kapoor family were transferred to Mukherjee brothers. The aforesaid agreement also provided that the Mukherjee family would be responsible to discharge the excise duty liabilities of the said company and therefore justifies the present proceeding against the petitioner and her late father Balram P. Mukherjee. The affidavit also stated that a notice of attachment was served upon the late Balram P. Mukherjee under the Recovery Rules, 1995, on December 6, 2005 and therefore the gift deed dated September 20, 2009, was void in law. However, the alleged notice of demand served on December 6, 2005, was not produced before the court.
