JUDGMENT : MOHAMMAD RAFIQ, J. 1. This writ petition has been filed by petitioner-Misty Medows Pvt. Limited inter alia with the prayer that petitioner be held not liable for payment of central excise dues of M/s. Pankaj Forging Ltd. on account of transfer of its land and building, which was purchased by the petitioner in public auction from RIICO. Petitioner has prayed the notice dated 7.2.2012 (Annexure-7) and 26.4.2012 (Annexure-9) issued by54 Pankaj Forgings Ltd. were transferred in favour of petitioner. Petitioner has placed on record the copies of the public notice published in Economic Times dated 26.6.1998 and the conveyance deed dated 19.2.1999. According to clause-16 of the conveyance deed, the assets agreed to be sold under the agreement to sale were described free from all prior encumbrances except charges of the Corporation/RFC for payment of balance amount of sale consideration and interest, costs, charges, additional interest etc. thereon and as provided in Clause-7 of the deed. Clause-7 stipulated any expenses on account of registration of sale deed/lease deed at any time including the bifurcation of the land/sub leasing/sub-letting, shall be borne by the purchaser. While the land and buildings were sold to the petitioner, the plant and machinery were sold by RIICO in favour of M/s. Ashwani Kumar & Company, New Delhi, which is evident from the letters dated 17.9.1998 and 26.9.1998, placed on record respectively as Annexure-5 and 6. 3. Shri Mahendra Goyal, learned counsel for the petitioner has submitted that the petitioner-company purchased the land for the purpose of developing farmhouses, resorts, buildings; residential/commercial on it and to dispose off or maintain the same in any manner they liked. In fact, petitioner raised various constructions over the building and disposed off its most parts. However, it was shocked to receive notice dated 7.2.2012 from the office of the respondent no.3-Superintendent, Central Excise Range-I, Bhiwari, Alwar, wherein a demand of Rs.11,55,723 was raised along with interest @ 24% per annum towards dues of excise against M/s. Pankaj Forging Pvt. Ltd. This notice refers to the earlier notices dated 10.7.2003, 12.1.2003, 13.1.2004 and 13.9.2004 alleged to have been addressed to the petitioner. However, none of these communications was ever received by the petitioner. However, none of these communications was ever received by the petitioner. It is contended that petitioner immediately replied to the notices through its counsel denying to pay the dues against M/s. Pankaj Forging Ltd. The respondent no.3 again reiterated the demand by another letter dated 26.4.2012, which was again refuted by the petitioner through his counsel vide reply dated 25.9.2012. It is contended that the respondent is seeking to rely on a letter of undertaking said to have been given by one Dilip Singh Raghav on behalf of the petitioner to pay the excise dues. Petitioner in para 4 of the memo of writ petition has asserted that no person in the name of Dilip Singh Raghav has either been Director in the petitioner-company or any of its office bearer or any authorised person at any point of time. It is stated that the person referred to above not been authorised by any resolution of the company to extend the said undertaking. In reply to para 4 of the writ petition, the respondents have not contested the said plea and have rather stated that this being a matter of record supported by an affidavit, is not required to be rebutted as the same are based on oath. Even otherwise also, petitioner company is not under legal obligation to make payment of the dues of M/s. Pankaj Forging Ltd. When however, the respondents threatened the petitioner of penal action, the petitioner left with no alternative and succumbing to the illegal pressure and demand, it was coerced to make payment of Rs.7,09,777 and Rs.3,26,777 through cheques under protest. A copy of the letter dated 11.1.2013 has been placed on record at Annexure-11 with which the aforesaid cheques were forwarded to the respondents reserving right of the petitioner to contest the claim of the respondents, which shows that the payment aforesaid was made under protest. 4. Learned counsel for the petitioner has relied on judgment of the Supreme Court in Rana Girders Ltd. vs. Union of India & Ors.- (2013) 10 SCC 746 and argued that the Supreme Court in that case on the question of liability of auction purchaser to pay outstanding dues of Central Excise of erstwhile owner held that it is only where entire business itself is purchased as on ongoing concern that the purchaser would be responsible to discharge the liability of Central Excise. Mere purchase of some of the properties of a person, who had outstanding dues in respect of excise duty, would not make the subsequent purchaser liable to pay the same. Learned counsel also relied on the judgments of this Court in M/s. Agardeep Enterprises Pvt. Ltd. vs. UOI (Central Excise) & Ors., D.B. Civil Writ Petition No.12057/2012 dated 25.05.2017 and M/s. BOC India Ltd. vs. UOI & Anr., D.B. Civil Writ Petition No.4501/2007. Learned counsel also relied on the judgment of this court in M/s. Global Industries vs. UOI & Ors., D.B. Civil Writ Petition No.4/2013 in which while allowing the writ petitions, the respondent-Commissioner of Excise Department was directed to refund the amount, which the petitioner had to pay under coercion within three months, failing which they were held liable to pay interest 9% per annum. 5. Learned counsel for the petitioner has submitted that the so called letter (Annexure-14) of undertaking said to have been written by one Dilip Singh on which reliance has been placed by the respondents is addressed to Managing Director of RIICO and not to Central Excise Department and therefore it cannot create any estoppel against the petitioner inasmuch as it does not amount to waiver on its part. In support of this argument, learned counsel has relied on the Constitution Bench judgment of the Supreme Court in B.V. Patankar & Ors. vs. C.G. Sastry- AIR 1961 SC 272 and two other judgments in Chhaganlal Keshavlal Mehta vs. Patel Narandas Haribhai- AIR 1982 SC 121 and All India Power Engineer Federation & Ors. vs. Sasan Power Ltd. & Ors.- (2017) 1 SCC 487 . Learned counsel relying on the judgment of Supreme Court in Paschimanchal Vidyut Vitran Nigam Ltd. vs. Adarsh Textiles- (2014) 16 SCC 212 has submitted that estoppel can be invoked only if it is extended by the competent person. 6. vs. Sasan Power Ltd. & Ors.- (2017) 1 SCC 487 . Learned counsel relying on the judgment of Supreme Court in Paschimanchal Vidyut Vitran Nigam Ltd. vs. Adarsh Textiles- (2014) 16 SCC 212 has submitted that estoppel can be invoked only if it is extended by the competent person. 6. Lastly, the learned counsel cited the Circular no.F.No.96/79/2014-CX.I (Pt.II) issued by the Ministry of Finance, Department of Revenue, Central Board of Excise and Customs dated 9.2.2015 addressed to all Chief Commissioners of Central Excise on the basis of judgment of the Supreme Court in Rana Girders Ltd., supra conveying that buyer of the assets of a unit in such cases where same is bought in the public auction from the bank or financial institution can be considered as successor for the purpose of Section 11 of the Central Excise Act, 1944 in business only if the unit is brought or taken over by the ‘buyer’ from the assessee. 7. Learned counsel referred to the agreement to sale dated 15th September, 1998 to contend that all that has been mentioned in para 17 of the agreement is that the petitioner company shall comply with the terms and condition of the lease deed dated 07.01.1978 executed between the Corporation and the debtors. The lease deed in clause 2(a) merely states that the lessee will bear, pay and discharge all rates, taxes, charges and assessment of every description, which may during the said term be assessed, charged or imposed upon either the landlord or tenant or the occupier in respect of the demised premises or the building to be erected thereupon. It is therefore argued that what could be payable as per the aforesaid clause of the lease deed would be relatable to the demised premises or the building to be erected thereupon and not the business of the out going concern. 8. Per contra, Shri Kinshuk Jain and Shri Krishnaveer Singh have opposed the writ petition and submitted that petitioner cannot approach this Court against the demand notice directly without availing the alternate remedy as per the mechanism authorised in the Central Excise Act itself. 8. Per contra, Shri Kinshuk Jain and Shri Krishnaveer Singh have opposed the writ petition and submitted that petitioner cannot approach this Court against the demand notice directly without availing the alternate remedy as per the mechanism authorised in the Central Excise Act itself. Learned counsel submitted that the representative of the petitioner-company Dilip Singh Raghav in his undated letter (Annexure-14) had categorically wrote to the Managing Director of RIICO, Jaipur in the context of their offer dated 13/15th April, 1998 that if their offer with respect to sale/purchase of land/premises of Pankaj Forging is accepted, they would pay all of the dues/liabilities of the outgoing company to the concerned department including sales tax, excise, custom, provident fund and electricity department. Learned counsel has then referred to the letter dated 7.2.2012 addressed by the Superintendent, Central Excise Range-I, Bhiwadi to the petitioner wherein it is clearly contended that as per the agreement petitioner had assured RIICO to pay all dues of Excise if the sale of M/s. Pankaj Forging Pvt. Ltd. is made to petitioner. The sale has since been materialised and the possession of M/s. Pankaj Forging Pvt. Ltd. has been handed to petitioner on 28.9.1998, but the dues have not been paid. 9. Learned counsel submitted that this was a clear stipulation in para 17 of the agreement to sale the petitioner-company shall comply with the terms and condition of the lease deed dated 07.01.1978 executed between the Corporation and the debtors in respect of the Plot No.A-109/110, RIICO Industrial Area, Bhiwadi, District Alwar and such terms and conditions shall remain binding and operative on the purchaser company. Clause 2(a) of the lease deed, makes the petitioner liable to pay all rates, taxes, charges and assessment of the outgoing company, which may during the said term, be assessed, charged or imposed upon it either by the landlord or tenant or the occupier in respect of the demised premises or the building to be erected thereupon. Since the factory premises was situated on the land auctioned to the petitioner by the respondent-RIICO, the petitioner would be liable to pay the outstanding dues of excise duty. 10. We have given our anxious consideration to the rival submissions and perused the material on record. 11. Since the factory premises was situated on the land auctioned to the petitioner by the respondent-RIICO, the petitioner would be liable to pay the outstanding dues of excise duty. 10. We have given our anxious consideration to the rival submissions and perused the material on record. 11. The averments in para 4 of the memorandum of writ petition clearly indicates that petitioner contested the claim of the respondent that it waived its right and as per the undertaking given by one Dilip Singh the petitioner agreed to pay the excise dues. It was categorically averred in para 4 of memorandum of writ petition that “no person in the name of Dilip Singh Raghav has either been Director in the petitioner-company or any of its office bearer or any authorised person at any point of time.” The respondent nos.1 to 3 in reply to para 4 of the writ petition have stated that the content of para no.4 are the matter of record as stated by the petitioner supported by an affidavit in connection with the submissions made in this para, hence the facts are not required to be rebutted as the same are based on oath. This would clearly demonstrate that the respondents have rather admitted what was pleaded by the petitioner that Dilip Singh Raghav was neither the Director of the company, nor was an office bearer or authorised person at any point of time and therefore the so-called undated undertaking which Dilip Singh Raghav furnished to the Managing Director of the RIICO would not bind the petitioner. This undertaking at any rate can neither be used to create an estoppel against the petitioner nor can it form basis to construe waiver on their part. 12. The judgment of the Supreme Court in B.V. Patankar & Ors., supra has described such a plea to be slender basis for the sustainability of the argument of waiver and estoppel, as in evident from the following observations made by their lordships in para 10 of the report:- “10. The argument of waiver and estoppel is also devoid of force. This plea was based on a letter which the respondent's lawyer sent in reply to the respondent asking to make arrangements to put the appellants in possession. The former replied thereto that his client' was making arrangements and as soon as he could do go, he would hand over possession to the appellants. This plea was based on a letter which the respondent's lawyer sent in reply to the respondent asking to make arrangements to put the appellants in possession. The former replied thereto that his client' was making arrangements and as soon as he could do go, he would hand over possession to the appellants. This is slender basis for the sustainability of the plea of waiver and estoppel. There is no conduct on the part of the respondent which has induced the appellants to change their position or has in any way affected their rights and the plea of non- executability which has been taken is based on statute and against statute there cannot be an estoppel. This ground taken by the appellants is equally unsound and must be rejected.” 13. The Supreme Court in Chhaganlal Keshavlal Mehta vs. Patel Narandas Haribhai- AIR 1982 SC 121 (SC) while elaborating the difference between an admission and estoppel observed that admissions being declarations against an interest are good evidence, but they are not conclusive and a party is always at liberty to withdraw admissions by providing that they are either mistaken or untrue. But estoppel creates an absolute bar. Their lordships observed that estoppel deals with questions of facts and not of rights. A man is not estopped from asserting a right which he had said that he will not assert. It is also a well-known principle that there can be no estoppel against a statute. Even if it is assumed that the employee of the petitioner, although has not been established/proved as a question of fact, if at all wrote, the letter relied by the respondent to the Managing Director of the RIICO without the authority, it cannot be construed as a waiver on the part of the petitioner to assert a right or law, which they can otherwise substantiate. Although the respondents having not disputed the fact that the said person was neither a Director, nor was authorised by resolution of the company or otherwise failed to substantiate the plea of estoppel against the petitioner. 14. Moreover, since the letter aforesaid has not been addressed to the Central Excise Department, it cannot be construed even remotely as an undertaking given to the Central Excise Department. 15. Waiver is consensual in nature. It implies a meeting of the minds. It is a matter of mutual intention. 14. Moreover, since the letter aforesaid has not been addressed to the Central Excise Department, it cannot be construed even remotely as an undertaking given to the Central Excise Department. 15. Waiver is consensual in nature. It implies a meeting of the minds. It is a matter of mutual intention. This doctrine does not depend on misrepresentation. Waiver actually requires two parties, one party waiving and another receiving the benefit of waiver. There can be waiver so intended by one party and so understood by the other. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver. In the present case, in the first place, it is disputed by the petitioners that the letter relied by the respondent was addressed to Managing Director, RIICO by any of their authorised representatives and if even otherwise this letter was not addressed to any of the functionaries of the Central Excise and, therefore, there was never any meeting of mind or expression of a mutual intention between the parties as waiver according to dictum of law laid down by the Supreme Court in P. Dasa Muni Reddy Vs. P. Appa Rao (1974)2 SCC 725 , supra would imply to two parties; one party waiving and another party receiving the benefit of waiver. The ingredients of the waiver in the present case are thus even otherwise missing. We deem it appropriate to reproduce relevant observations of the Supreme Court in para 13 of the aforementioned judgment which reads as under :- “Waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege which except for such waiver the party would have enjoyed. Waiver can also be a voluntary surrender of a right. The doctrine of waiver has been applied in cases where landlords claimed forfeiture of lease or tenancy because of breach of some condition in the contract of tenancy. The doctrine which the courts of law will recognise is a rule of judicial policy that a person will not be allowed to take inconsistent positions to gain advantage through the aid of courts. Waiver sometimes partakes of the nature of an election. Waiver is consensual in nature. It implies a meeting of the minds. It is a matter of mutual intention. The doctrine does not depend on misrepresentation. Waiver sometimes partakes of the nature of an election. Waiver is consensual in nature. It implies a meeting of the minds. It is a matter of mutual intention. The doctrine does not depend on misrepresentation. Waiver actually requires two parties, one party waiving and another receiving the benefit of waiver. There can be waiver so intended by one party and so understood by the other. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver. There should exist an opportunity for choice between the relinquishment and an enforcement of the right in question. It cannot be held that there has been a waiver of valuable rights where the circumstances show that what was done was involuntary. There can be no waiver of a non-existent right. Similarly, one cannot waive that which is not one's as a right at the time of waiver. Some mistake or misapprehension as to some facts which constitute the underlying assumption without which parties would not have made the contract may be sufficient to justify the court in saying that there was no consent.” 16. The Supreme Court in Adarsh Textiles, supra while dealing with the aspect of waiver has held that it is a settled proposition of law that the assurance to form promissory estoppel must come from the person in authority having competence to extend it and if the competence of the person, who addressed the letter of the petitioner is not established, it is not proved, the said even otherwise can create any estoppel against the petitioner. 17. The Supreme Court in Rana Girders Ltd., supra has settled this controversy once and forever. Therein the Supreme Court was dealing with the question as to when the liability of auction purchaser (subsequent purchaser) to pay outstanding dues of the Central Excise of erstwhile owner would arise. The Supreme Court held that only where entire business itself is purchased as an ongoing concern, that the purchaser can be held responsible to discharge liability of Central Excise as well. The Supreme Court held that only where entire business itself is purchased as an ongoing concern, that the purchaser can be held responsible to discharge liability of Central Excise as well. Mere purchase of some of the properties of a person who had outstanding dues in respect of excise duty does not make subsequent purchaser liable therefor, in absence of specific provision in the statute creating first charge relating to government dues/excise dues over said property, which charge binds the subsequent purchaser/transferee either at law or in equity. In the present case, there is no such statutory provision creating first charge in addition to the excise duty at the relevant time is shown to have exist. We may for the facility of reference, reproduce para 23 of the aforesaid judgment, which reads as under: “23. We may notice that in the first instance it was mentioned not only in the public notice but there is a specific clause inserted in the Sale Deed/Agreement as well, to the effect that the properties in question are being sold free from all encumbrances. At the same time, there is also a stipulation that “all these statutory liabilities arising out of the land shall be borne by purchaser in the sale deed” and “all these statutory liabilities arising out of the said properties shall be borne by the vendee and vendor shall not be held responsible in the Agreement of Sale.” As per the High Court, these statutory liabilities would include excise dues. We find that the High Court has missed the true intent and purport of this clause. The expressions in the Sale Deed as well as in the Agreement for purchase of plant and machinery talks of statutory liabilities “arising out of the land” or statutory liabilities “arising out of the said properties” (i.e. the machinery). Thus, it is only that statutory liability which arises out of the land and building or out of plant and machinery which is to be discharged by the purchaser. Excise dues are not the statutory liabilities which arise out of the land and building or the plant and machinery. Statutory liabilities arising out of the land and building could be in the form of the property tax or other types of cess relating to property etc. Likewise, statutory liability arising out of the plant and machinery could be the sales tax etc. Statutory liabilities arising out of the land and building could be in the form of the property tax or other types of cess relating to property etc. Likewise, statutory liability arising out of the plant and machinery could be the sales tax etc. payable on the said machinery. As far as dues of the Central Excise are concerned, they were not related to the said plant and machinery or the land and building and thus did not arise out of those properties. Dues of the Excise Department became payable on the manufacturing of excisable items by the erstwhile owner, therefore, these statutory dues are in respect of those items produced and not the plant and machinery which was used for the purposes of manufacture. This fine distinction is not taken note at all by the High Court.” 18. The Supreme Court in the aforesaid judgment was dealing with the expression “sale deed” where stipulation was to the effect “all the statutory liabilities arising out of the land shall be borne by the purchaser in the sale deed” and “all the statutory liabilities arising out of the said properties shall be borne by the vendee and the vendor shall not be held responsible in the agreement to sale.” In that case, the High Court had taken the view that statutory liability referred to in the sale deed shall also include the excise dues. However, the Supreme Court did not approve of the said approach of the High Court by holding that the expressions in the sale deed as well as in the agreement for purchase of plant and machinery talk of statutory liabilities “arising out of the land” or statutory liabilities “arising out of the said properties” (i.e. the machinery). Thus, it is only that statutory liability, which arises out of the land and building or out of plant and machinery, which is to be discharged by the purchaser. Excise dues are not the statutory liabilities, which arise out of the land and building or the plant and machinery. As regards the lease deed, which has been executed in the present case, clause 2(a) of the lease deed contains a somewhat similar stipulation. Excise dues are not the statutory liabilities, which arise out of the land and building or the plant and machinery. As regards the lease deed, which has been executed in the present case, clause 2(a) of the lease deed contains a somewhat similar stipulation. It would be evident from the aforesaid stipulation that the lessee has been held liable to bear, pay and discharge all rates, taxes, charges and assessment of the outgoing company, which may during the said term, be assessed, charged or imposed upon it either by the landlord or tenant or the occupier in respect of the demised premises or the building to be erected thereupon (emphasis supplied). It is only such rates, taxes, charges and assessment etc. which may have been assessed, charged or imposed in respect of the demised premises or the building to be erected thereupon, that the subsequent purchaser may be held liable to pay and not otherwise. The ratio of the judgment of the Supreme Court in the aforesaid case, therefore, would fully apply to the facts of the present case also and thus the excise duty would not be covered by any of the expressions used in clause 2(a), supra. 19. Lastly but not the least, we may refer to the Circular no.F.No.96/79/2014-CX.I (Pt.II) issued by the Ministry of Finance, Department of Revenue, Central Board of Excise and Customs dated 9.2.2015 addressed to all Chief Commissioners of Central Excise on the basis of judgment of the Supreme Court in Rana Girders Ltd., supra conveying that buyer of the assets of a unit in such cases where same is bought in the public auction from the bank or financial institution can be considered as successor in business only when the unit is brought or taken over by the petitioner from the assessee. The buyer can be considered as successor to the earlier assessee for the purpose of Section 11 of the Central Excise Act, 1944. 20. In view of the above discussion, the present writ petition deserves to succeed and is accordingly allowed. Petitioner is declared not liable to pay the excise duty to the respondents. The respondents are directed to refund the amount of Rs.7,09,777 and Rs.3,26,777 (totally Rs. 10,36,554) paid to them by the petitioner vide cheques dated 10.1.2013 within a period of three months from the date copy of this judgment is produced before them. Petitioner is declared not liable to pay the excise duty to the respondents. The respondents are directed to refund the amount of Rs.7,09,777 and Rs.3,26,777 (totally Rs. 10,36,554) paid to them by the petitioner vide cheques dated 10.1.2013 within a period of three months from the date copy of this judgment is produced before them. If the aforesaid amount is not paid within three months, the petitioner shall be liable to pay interest @ 9% per annum for the entire duration the said money was retained by the respondents.