Najmi Waziri, J. (Oral):— The hearing has been conducted through hybrid mode (physical and virtual hearing).
CM APPL. 5934/2023 (Exmp.)
2. Allowed, subject to all just exceptions.
3. The application stands disposed-off.
LPA 92/2023, CM APPL. 5932/2023 (for interim directions) & CM APPL. 5933/2023 (for placing additional documents)
4. The case has been received on transfer.
5. Issue notice. The learned counsel named above accepts notice on behalf of GNCTD.
6. At joint request, the appeal is taken up for disposal.
7. Pursuant to the Recovery Certificate dated 04.10.2022 issued under section 29 of the Delhi Excise Act, 2009 for recovery of an amount of Rs. 98,28,771/- payable by M/s Popular Spirits LLP, the personal property of the appellant-Mr. Sahil Arora, the LLP partner in Gurgaon at S-22/5, 2 Floor, DLF Phase-III, Gurgaon was sought to be attached. Similarly, the leased property in Delhi identified as D-240, 3 Floor, Defence Colony, New Delhi was also sought to be attached. The impugned order dated 13.01.2023 stayed the attachment proceedings but has simultaneously directed deposit of an amount of Rs. 1 crore with the Excise Department within four weeks.
8. Mr. Sudhir Nandrajog, the learned Senior Advocate for the appellant submits that the impugned order has erred in directing the appellant to deposit the said money. The appellant is one of the three partners. The licencee is a limited liability partnership firm. Its liabilities cannot be recovered from the personal assets of its partners in terms of sections 27(3) & (4) and section 28 of the LLP Act, 2008 which reads as under:
“Section 27 : Extent of liability of limited liability partnership.
(3) An obligation of the limited liability partnership whether arising in contract or otherwise, shall be solely the obligation of the limited liability partnership.
(4) The liabilities of the limited liability partnership shall be met out of the property of the limited liability partnership.”
Section 28. Extent of liability of partner.
(1) A partner is not personally liable, directly or indirectly for an obligation referred to in sub-section (3) of section 27 solely by reason of being a partner of the limited liability partnership.
(2) The provisions of sub-section (3) of section 27 and sub-section (1) of this section shall not affect the personal liability of a partner for his own wrongful act or omission, but a partner shall not be personally liable for the wrongful act or omission of any other partner of the limited liability partnership.”
9. Section 29 of the Delhi Excise Act gives a lien to the Excise Department for the recovery of duty and other levies from the defaulter. It reads as under:
“29. Recovery of duty and other levies and lien on the property of defaulter
(1) All excise revenue, payable to the Government under this Act, may be recovered from the person liable to pay the same or his legal successors or from his surety or his agent as if they were the arrears of land revenue.
(2) In the event of default in payment of excise revenue or otherwise, by any person licensed under this Act, his manufactory, warehouse, shop or premises and all fittings, apparatus, stocks of liquor or material for the manufacture of the same, held therein shall be liable to be attached towards any claim for excise revenue or in respect of any loss incurred by the Government through such default and be sold to satisfy such claim which shall be the first charge upon the proceeds of such sale.
(3) Where duty due is not levied or not paid or short-levied or short-paid or erroneously refunded,—
(a) the Assistant Commissioner may, within four years from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice.
Explanation I : Where the service of the notice is stayed by an order of the court, the period of such stay shall be excluded in computing the aforesaid period of four years.
Explanation II : For the purposes of this clause “relevant date” means—
(i) in the case of intoxicants on which duty has not been levied or paid or has been short-levied or short-paid, the date on which the duty is to be paid under this Act or the rules made thereunder,
(ii) in a case where duty is provisionally assessed under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof,
(iii) in the case of intoxicants on which duty has been erroneously refunded, the date of such refund;
(b) the Assistant Commissioner shall, after considering the representation, if any, made by the person on whom notice is served under clause (a), determine the amount of duty due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined.”
10. When there is a statutory protection apropos to the personal assets of a partner in a limited liability, surely the Excise Department cannot go beyond the assets of the defaulter i.e. the LLP. In this case, the defaulter's assets have been limited by the partnership's assets. Therefore, for a partner of the LLP to be directed to deposit an amount of Rs. 1 crore from his personal assets would not be warranted.
11. At this stage, the learned counsel for the respondent submits that the appellant has already deposed by way of an affidavit dated 23.01.2023 that neither he nor the defaulting licencee are the owners of the aforesaid Gurgaon property. Indeed, the premises is leased out to the LLP. (PDF 360 para 7)
12. Be that as it may, insofar as the liability of the limited liability partnership would not extend to the personal assets of its partners, the directions to one of the partners to deposit Rs. 1 crore from his personal assets is unwarranted and accordingly the said portion of the impugned order is hereby set-aside. It will be open to the LLP to file its list of assets with the Excise Department for the latter to take action as per law. The impugned order is modified to this extent.
13. The appeal, along with pending applications, is disposed-off in terms of the above.