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2023 (8) TMI 860 - AT - Insolvency and BankruptcyRejection of application of the Liquidator - recoveries of customs duties - invocation of the Bank Guarantee(BG) allowed, during the moratorium period in force under section 14 of IBC. Whether the BGs and FDRs (Fixed Deposit Receipts) that were deposited by the corporate debtor in view of various materials received at the port and released by the customs from Nhava Sheva Port and the Customs Private Bonded Warehouse at Wardha, should be returned to the corporate debtor/liquidator? HELD THAT:- In the present case, invocation of BG is not about recovery of any claim by the customs authorities, but is about revocation of surety provided by the corporate debtor to the customs authorities in the form of FDRs and BG. In this connection, the judgment of the Hon’ble Supreme court in the matter of STATE BANK OF INDIA VERSUS V. RAMAKRISHNAN AND ANR. [2018 (8) TMI 837 - SUPREME COURT] is noted, wherein Hon’ble Supreme Court has noticed the observations in the report dated 26.03.2018 of the Insolvency Law Committee appointed by the Ministry of Corporate Affairs, holding that to clear the confusion regarding treatment of assets of guarantors of the corporate debtor vis-a-vis the moratorium on the assets of the corporate debtor, it has been recommended to clarify by way of an explanation that all assets of such guarantors to the corporate debtor shall be outside scope of moratorium imposed under the Code Appellant placed reliance upon the judgment of Hon’ble Supreme Court in the matter of SUNDARESH BHATT, LIQUIDATOR OF ABG SHIPYARD VERSUS CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS [2022 (8) TMI 1161 - SUPREME COURT]. A perusal of this judgment shows that the customs authorities can assess/reassess customs/import duty, but are not allowed to recover such amounts, which should be claimed as part of the resolution process under IBC by the debtor. This judgment is distinguished on the basis that in the present case, the customs authorities are not recovering any amount on the basis of assessed customs/import duty, but the issue in the appeal is about invocation of the BG and FDRs. Therefore, in the light of the judgment of Hon’ble Supreme Court in the matter of State Bank of India vs. V. Ramakrishnan & Anr. and of this Tribunal in the matter of BHARAT ALUMINIUM CO. LTD VERSUS M/S J.P. ENGINEERS PVT LTD., ANDHRA BANK (NOW MERGED WITH UNION BANK) [2021 (2) TMI 1151 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI], it is clear that section 14(3)(b) allows for invocation of BGs. The appeal is devoid of merit and does not deserve to be admitted at the initial stage itself.
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