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2022 (11) TMI 220 - AT - CustomsRecovery of demand - applicant submits that as per the resolution plan approved by NCLT, no dues exists against the applicant - HELD THAT:- The NCLT has passed an order by approving resolution plan of the company M/s. Ruchi Soya Industries Ltd in favor of Patanjali Ayurved Limited, Divya Yog Mandir Trust, Patanjali Parivahan Pvt. Ltd. and Patanjali Gramudhyog Nyas, who are the resolution applicant - from the terms of the resolution plan approved by the NCLT, it prima facie appears that the appellant is not liable to pay any dues. However, this tribunal is not competent to decide regarding the recovery of any dues. It is the department who has to decide whether any dues is recoverable or otherwise, in the light of the resolution plan approved by the NCLT. As per the resolution plan approved by the NCLT and in the light of Hon’ble Supreme Court judgment in the case of Ghanashyam Mishra & Sons Pvt. Ltd. [2021 (4) TMI 613 - SUPREME COURT], it prima facie appears that the adjudged dues cannot be recovered by the department however, this issue has to be decided by the department and not by this tribunal. For this reason, that firstly, there is no provision made in the Customs and Central Excise Act to give effect of NCLT proceedings. This tribunal being creature under the Customs Act, even though the Insolvency and Bankruptcy Code have over riding effect over all the other acts, in absence of any explicit provision under the Customs/Central Excise Act, this tribunal cannot decide finally whether the adjudged amount can be recovered by the department or otherwise. This issue has to be resolved by the respondent with the appellant/resolution applicant/NCLT/Resolution professional. It is noted that IBC proceedings are being initiated against many companies who are either appellant or respondent in the appeals pending before this tribunal. The revenue-department has no proper guideline as to what stand is to be taken in a case where the IBC proceedings is in progress before NCLT/NCLAT or at higher forum - the Central Board of Indirect Taxes & Customs may consider issuing guideline/procedure for dealing with the case before this tribunal wherein, against the assesse’s company IBC proceeding has been initiated. Application disposed off.
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