JUDGMENT : Goutam Bhaduri, J. Heard. 1. The present appeal is against the Order dated 23.07.2016 passed by the Employees Insurance Court-cum-Labour Court No. 2), Raipur (C.G.) wherein, the recovery for contribution of Rs. 3,91,081+ Rs. 4,94,679/- and Rs. 1,54,58,216/- totaling to Rs. 1,63,43,976/- for the period of 16.08.1995 to 31.07.2001 was asked for. According to the appellant, it acquired a unit of Rajesh Strips which was declared sick and was under Board of Industrial and Financial Reconstruction (BIFR). 2. The appellant contended that by an order dated 17.09.2001 of BIFR, the erstwhile Rajesh Strips was declared sick under Section 3 (1) of the Sick Industrial Companies (Special Provisions Act, 1985) and IDBI was appointed as a operative agency for revival. The appellant contended that they had taken one unit on rent and that unit was being run by the Abhishek Steel Industries. It is stated that the appellant company started on 01.09.2004 and sought for new code to make its contribution under the Employee State Insurance Act, 1948. According to the appellant, they were not provided with any fresh code number and consequently they continued to make their contribution under the old code which was given to Rajesh Strips. The appellant contended that the ESI Corporation without giving any relief to the appellant has entirely transferred the liability of Rajesh Strips to it, though the financial liability was not ascertained as that of a secured creditor by ESI. It is stated under these circumstances that the demand made by ESI Corporation was bad in law. 3. The respondent contended that as per the notification of the Union Government dated 08.08.2015, the provisions of E.S.I Act was made applicable in the Urla Industrial Area from 16.08.1995, wherein the unit on which liability is imposed situates and the State Government has not granted any exemption from any incurred liability under the Employees State Insurance Act, 1948 to any industries. According to the respondent on 15.10.2004, one of the unit of Rajesh Strips Limited was acquired by the appellant. According to the respondent No. 2, ESI, Corporation, the officers had inspected the Rajesh Strips, the Erstwhile Unit from 16.08.1995 to 21.07.2001 and subsequently from 10.09.2001 to 13.09.2001 and on the basis of such inspection, demand notice under C-18 were issued for Rs. 1,54,58,216/- and Rs. 4,94,679/- and thereafter the appellant was asked to submit their stand. According to the respondent No. 2, ESI, Corporation, the officers had inspected the Rajesh Strips, the Erstwhile Unit from 16.08.1995 to 21.07.2001 and subsequently from 10.09.2001 to 13.09.2001 and on the basis of such inspection, demand notice under C-18 were issued for Rs. 1,54,58,216/- and Rs. 4,94,679/- and thereafter the appellant was asked to submit their stand. For such hearing, date was fixed on 06.04.2005, but no one appeared on behalf of the appellant. Consequently, on 23.11.2005, the orders were passed as per Section 45 (A) of the Act of 1948 and the liability has been fastened on the appellant company. 4. The learned Employees Insurance Court, went into detail of the facts and held that in respect of the amount so demanded the liability of the present appellant company would be joint and several with that of the erstwhile company Rajesh Strips and dismissed the application. Being aggrieved by such order, the present appeal has been filed. 5. Learned counsel for the appellant would submit that the necessary statutory notice under Section 45A of the Employees’ State Insurance Act, 1948 and one of the notice which is Ex.P/5 was not issued to the present appellant company who subsequently acquired one of the unit. He would submit that without giving the notice, fastening of liability would be against the rules of natural justice. He would further submit that liability prior to transfer of the unit cannot be fastened as the erstwhile unit was declared sick as the recovery pertains to 16.08.1995 to 31.07.2001 whereas, the present appellant company acquired the unit in the year 2004. He would further submit that undoubtedly since the unit was under the Sick Industrial Companies (Special Provisions) Act, 1985 and IDBI was appointed as an operating agency, without the stand of IDBI and unilaterally the recovery cannot be made. He further submits that the recovery was prior to five years which could not have been claimed, therefore, the order of the learned Employees’ Insurance Court is faulty. He further submits that as per Section 93 A of the Act of 1948, the liability of transferee shall be limited to the value of the assets obtained by him by such transfer, therefore, the entire liability of the Rajesh Strips cannot be fastened on the present appellant, who only acquired one unit. 6. He further submits that as per Section 93 A of the Act of 1948, the liability of transferee shall be limited to the value of the assets obtained by him by such transfer, therefore, the entire liability of the Rajesh Strips cannot be fastened on the present appellant, who only acquired one unit. 6. Per contra, learned counsel for the respondents would submit that when the appeal was admitted under Section 82 of the Act of 1948, on a substantial question of law it would show that the answer would be under Section 93A as the erstwhile company from which the appellant acquired the company would be under a joint liability and the liability would be joint and several. He would further submit when the challenge was made to the order under Section 45-A, the only dispute which the appellant brought forward by Ex.P/5, was of Rs. 4,94,679/- and in respect of the other recovery order, it was not before the Employees’ Insurance Court, therefore, that issue cannot be adjudicated and raised first time in this appeal. He would further submit that as per Section 93A, the liability would be joint & several and since the appellant did not produce any document and chose not to contest before the Employees’ Insurance Court, the assessment was determined on the principle of ‘Best Judgment Assessment’. He placed his reliance in the judgment of the Supreme Court in the matter of ESI Corporation v. C.C. Santhakumar reported in 2007 1 SCC 584 . He would further submit that the appellant also did not choose to contest the liability before the authorities and further the question of limitation which has been framed would show that the bar of five years for unpaid dues has been brought into the statute in the year 2010 and the liability of the appellant was prior to that period and the notices were also issued prior to that. He also placed reliance in the matter Bombay Anand Bhavan Restaurant v. Deputy Director, Employees State Insurance Corporation and Another reported in (2009) 9 SCC 61, to submit that the nature of proceeding under the ESI Act is a benevolent legislation, the narrow interpretation cannot be given. Accordingly, the question of law are answered as per the statute and this appeal is liable to fail. 7. We have heard learned counsel for the parties. 8. Accordingly, the question of law are answered as per the statute and this appeal is liable to fail. 7. We have heard learned counsel for the parties. 8. Perusal of the order which is impugned i.e. 23.07.2016 by the Employees Insurance Court, would show that three challenge were made which was passed under Section 45A of the E.S.I. Act. The relevant Section 45 A of the E.S.I. Act, 1948 is reproduced as under: 45A. Determination of contributions in certain cases. (1) Where in respect of a factory or establishment no returns, particulars, registers or records are submitted, furnished or maintained in accordance with the provisions of section 44 or any Social Security Officer or other official of the Corporation referred to in sub-section (2) of section 45 is prevented in any manner by the principal or immediate employer or any other person, in exercising his functions or discharging his duties under section 45, the Corporation may, on the basis of information available to it, by order, determine the amount of contributions payable in respect of the employees of that factory or establishment: Provided that no such order shall be passed by the Corporation unless the principal or immediate employer or the person in charge of the factory or establishment has been given a reasonable opportunity of being heard: Provided further that no such order shall be passed by the Corporation in respect of the period beyond five years from the date on which the contribution shall become payable.(2)An order made by the Corporation under sub-section (1) shall be sufficient proof of the claim of the Corporation under section 75 or for recovery of the amount determined by such order as an arrear of land revenue under section 45B or the recovery under sections 45C to 45-I. 9. Section 45-A speaks about determination of contribution in certain cases, it speaks about that no such order be passed by the corporation unless principle or immediate employer of the person in-charge of the factory is given reasonable opportunity of being heard and no such order shall be passed in respect of the period beyond five years. Section 45-A speaks about determination of contribution in certain cases, it speaks about that no such order be passed by the corporation unless principle or immediate employer of the person in-charge of the factory is given reasonable opportunity of being heard and no such order shall be passed in respect of the period beyond five years. The bar of five years limitation has been inserted by the Act of 18 of 2010 w.e.f. 01.06.2010, therefore, in the facts of this case, claim of contribution beyond the period of past five years would not be applicable as the period for which the claim was made was up till 2001 and was much before the amendment came into statute. Therefore, the third question of law, Whether learned ESI is justified in directing the recovery of contribution beyond five years from the date on which the amount of ESI became payable would be in favour of the respondent that since the claim made from the appellant was in between 16.05.1995 to 31.07.2001, it would not be eclipsed by the proviso to clause of Section 45 A. 10. The facts would suggest that the determination of contribution was subject of challenge by the appellant under Section 75 and 77 of the Employment Insurance Act. A perusal of the record would show that one of the notice which was exhibited by the appellant i.e. Ex.P/3 was with respect to the demand of contribution of Rs. 4,94,679/- which shows that the copy of the determination was given to the appellant Abhishek Steel Industries Limited. The another notice Ex.P/4 is for demand of contribution of Rs. 1,54,58,216/- and Ex.P/5 which shows that the notice was served to the appellant. 11. Section 93A speaks about liability in case of transfer of establishment. For sake of brevity the said Section is reproduced hereunder; 93A. Liability in case of transfer of establishment. The another notice Ex.P/4 is for demand of contribution of Rs. 1,54,58,216/- and Ex.P/5 which shows that the notice was served to the appellant. 11. Section 93A speaks about liability in case of transfer of establishment. For sake of brevity the said Section is reproduced hereunder; 93A. Liability in case of transfer of establishment. Where an employer, in relation to a factory or establishment, transfers that factory or establishment in whole or in part, by sale, gift, lease or licence or in any other manner whatsoever, the employer and the person to whom the factory or establishment is so transferred shall jointly and severally be liable to pay the amount due in respect of any contribution or any other amount payable under this Act in respect of the periods up to the date of such transfer: Provided that the liability of the transferee shall be limited to the value of the assets obtained by him by such transfer. 12. Reading of this aforesaid Section would show that in case of transfer, the transferee and the transferrer shall jointly and severally liable to pay the amount due in respect of any contribution or any amount payable under this Act; provided the liability of the transferee shall be limited to the value of the assets obtained by him by such transfer. 13. Before the Employees’ Insurance Court, the value of assets which was obtained by the appellant was not brought forward and apart from that the order under Section 45A would show that when the notice i.e. Ex.P/3 was issued, the appellant company initially was represented on 08.04.2005 and date was given for 09.05.2005, but subsequent to that no one appeared. Further, the order of Employees’ Insurance Court would show in order to limit the liability of the appellant, they had not produced any evidence or document. Consequently, in view of Section 93A, in case of such transfer the liability would be joint and several and has a statutory effect and in absence of any facts to appreciate, otherwise or to put a cap on it, it would be difficult for the appellant to escape the liability. 14. Consequently, in view of Section 93A, in case of such transfer the liability would be joint and several and has a statutory effect and in absence of any facts to appreciate, otherwise or to put a cap on it, it would be difficult for the appellant to escape the liability. 14. In absence of any evidence or facts, the assessment was done on the ‘Best Assessment Policy’ and this principle has been laid down by the Supreme Court in the matter of ESI Corporation (supra), which purports that when there is no cooperation, the corporation has got the power to make assessment and determine the amount under Section 45A, which would be in the nature of ‘best judgment assessment’ which is known in the taxing statute, for sake of brevity Para 15 is reproduced as under: 15. Section 45A provides for determination of contributions in certain cases. When the records are not produced by the establishment before the Corporation and when there is no cooperation, the Corporation has got the power to make assessment and determine the amount under Section 45A and recover the said amount as arrears of land revenue under Section 45B of the Act. This is in the nature of a best judgment assessment as is known in taxing statutes. When the Corporation passes an order under Section 45A, the said order is final as far as the Corporation is concerned. Under Section 45A(1), the Corporation, by an order, can determine the amount of contributions payable in respect of the employees where the employer prevents the Corporation from exercising its functions or discharging its duties under Section 45, on the basis of the material available to it, after giving reasonable opportunity. But, where the records are produced, the assessment has to be made under Section 75(2)(a) of the Act. Section 45A (2) provides that the order under Section 45A(1) shall be used as sufficient proof of the claim of the Corporation under Section 75 or for recovery of the amount determined by such order as arrears of land revenue under Section 45B. In other words, when there is a failure in production of records and when there is no cooperation, the Corporation can determine the amount and recover the same as arrears of land revenue under Section 45B. In other words, when there is a failure in production of records and when there is no cooperation, the Corporation can determine the amount and recover the same as arrears of land revenue under Section 45B. But, on the other hand, if the records are produced and if there is cooperation, the assessment has to be made and it can be used as a sufficient proof of the claim of the Corporation under Section 75 before the E.S.I. Court. So, the limitation of three years for filing an application before the Court, introduced by Act 44 of 1966, can only relate to the application under Section 75 read with 77(1A). The order under Section 45A need not be executed by the Corporation before the E.S.I. Court under Section 77. As such, the amendment to Section 77(1A)(b) proviso by Act 29 of 1989 providing five year limitation has no relevance so far as orders passed by the Corporation under Section 45A are concerned. 15. Furthermore, in absence of any fact, brought forward by way of evidence, the like nature of liability which falls under the Employees State Insurance Act, 1948 has been held to be for benefit of workers and thus is a beneficial legislation. The Act is to provide for certain benefit to the employees of a factory in case of sickness, maternity and other injury of like nature, therefore, it being a social legislation, the Court must even if necessary strain the language of the Act in order to achieve the purpose of which legislature has been made. The said proposition has been laid down in case of Bombay Anand Bhavan Restaurant (supra) (2009) 9 SCC 61 at Para 20, which is reproduced hereunder; 15) The Employees State Insurance Act is a beneficial legislation. The main purpose of the enactment as the Preamble suggests, is to provide for certain benefits to employees of a factory in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto. The Employees State Insurance Act is a social security legislation and the cannons of interpreting a social legislation is different from the cannons of interpretation of taxation law. The Employees State Insurance Act is a social security legislation and the cannons of interpreting a social legislation is different from the cannons of interpretation of taxation law. The courts must not countenance any subterfuge which would defeat the provisions of social legislation and the courts must even, if necessary, strain the language of the Act in order to achieve the purpose which the legislature had in placing this legislation on the statute book. The Act, therefore, must receive a liberal construction so as to promote its objects. 16. In view of that, the question of law (I) Whether learned ESI is justified in fastening the liability upon the appellant/company under Section 93A of the ESI Act and (ii) Whether learned ESI is justified in fastening the liability upon the appellant/Company ignoring the fact that there is neither adjudication nor determination of the amount due in respect of contribution payable prior to transfer of establishment? are also answered in favour of the respondent and the E.S.I Corporation can very well fasten the liability to recover its dues. 17. Accordingly, the appeal is dismissed.