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2020 (8) TMI 348 - AT - Insolvency and BankruptcyResolution of Corporate Insolvency approved by the Committee of Creditors - Claim of Customs Duty and other dues after de-bonding / de-notification of SEZ unit - It is contended that the amount to be paid at the time of de-bonding/ exit from SEZ is subject to the assessment to be made by the Development Commissioner under Rule 74 of the ‘SEZ Rules, 2016’ - time limitation - HELD THAT:- Section 61 of the ‘I&B Code’ provides for appeal against an order passed by the Adjudicating Authority under Part-II of the ‘I&B Code’ covering Sections 4 to 77 of the ‘I&B Code’. An aggrieved person may prefer an appeal to NCLAT within 30 days. This Appellate Tribunal has been vested with powers to allow an appeal to be filed after the expiry of 30 days if it is satisfied that there was sufficient cause for not filing the appeal within the prescribed time. However, such period shall not exceed 15 days - It is by now well settled that the provisions of the Limitation Act, 1963 cannot be invoked for regulating the period of limitation governing appeals preferred under Section 61 of the ‘I&B Code’ which ordinarily provides a period of 30 days for preferring of an appeal by an aggrieved person qua an order passed under Part-II of the ‘I&B Code’ which is extendable by 15 days at the discretion of this Appellate Tribunal on sufficient cause being assigned for non-filing of appeal within the statutory period of 30 days. It is also manifestly clear that the outer limit of 45 days cannot be transgressed to enable an Appellant to maintain an appeal under this provision. If the appeal has been preferred beyond statutory period of 30 days and extended period of 15 days i.e. total 45 days, this Appellate Tribunal will have no jurisdiction to entertain such appeal. From which date the period of limitation is to be reckoned? - HELD THAT:- The appeal has been preferred even 30 days beyond the extended timelines of 45 days envisaged under Section 61(2) proviso of the ‘I&B Code’. It is, therefore, irrelevant as to whether the cause assigned for non-filing of the appeal within statutory period of 30 days from the date of knowledge was sufficient to warrant condonation of delay/ extension for 15 days contemplated under law as the maximum outer limit. The appeal being hopelessly time barred deserves to be dismissed on the count of limitation alone. Whether the Appellant has been able to carve out a case on merit for judicial intervention qua the impugned order? - HELD THAT:- It is abundantly clear that the ‘SEZ Act, 2005’ has overriding effect and wherever the extant laws dealing with the matters dealt with under the Act are inconsistent with the provisions of the Act, the provision of the Act will prevail. In the instant case, there is no controversy on the vital aspect of the exact amount chargeable for de-notification of the unit of Corporate Debtor being determined by the Development Commissioner at the time of exit in terms of Rule 74. This is in fact admitted position and the Appellant also has admitted that the amount of ₹ 45 Crores set apart in the approved Resolution Plan for de-notification of the Corporate Debtor from SEZ is not a crystallised debt but an amount to be assessed by the Development Commissioner in exercise of its jurisdiction. Thus, it is abundantly clear that the estimated amount of ₹ 45 Crores has been set apart in the approved Resolution Plan to take care of the duties chargeable and penalties imposable by the Development Commissioner while according approval to opting out of Corporate Debtor from SEZ. Admittedly, the Resolution Applicant has applied for the de-notification of the unit of the Corporate Debtor before the Development Commissioner. Claim of Appellant amounting to ₹ 36,21,42,252/- having been rejected during the Resolution Process and the same not having been assailed by the Appellant before the Adjudicating Authority, the Appellant is not entitled to raise issue in this regard for the first time in appeal before this Appellate Tribunal. Argument advanced on this aspect is accordingly repelled - the Appellant has failed to carve out a case for judicial intervention in appeal on merits too - Appeal is barred by limitation and is dismissed.
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