Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + AT Insolvency and Bankruptcy - 2021 (8) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (8) TMI 431 - AT - Insolvency and BankruptcyAuction of goods, detained by Customs Authority during moratorium period - allegation is that ignoring the intimation by IRP, the Dept. illegally auctioned the goods contained in the 256 containers - Whether the Adjudicating Authority was justified in directing the amount to be made over to the Corporate Debtor, in the light of ‘Claims’ made by MSC Shipping and the Customs Dept.? - Applicability of Section 48 of the Customs Act, 1962. HELD THAT:- ‘MSC Shipping’ filed Form B on 04.06.2019 as an ‘Operational Creditor’ prior to the filing of this Appeal. Additionally, its Agency ‘MSC Agency’ (India) Pvt. Ltd. also filed Form B on 04.06.2019 as an ‘Operational Creditor’ before the Resolution Professional. It is significant to mention that both ‘MSC Shipping’ and its Agency have clearly specified in item 7 ‘details of how & when Debt occurred’ that the claimants provide marine containers and are engaged in the business of carriage of goods by sea. Briefly put, it is stated therein that ‘in all the 15 Bills of Lading, the ‘Corporate Debtor’ and its sister concern ‘Bhuvee Profiles’ were declared as Consignee and/or Notified Party’. As the consignee/and endorsee and/or holder of the goods being the receiver of the goods are bound by the terms & conditions of the said Bills of Lading. Therefore, admittedly being the consignee of the goods, the ‘Corporate Debtor’ has a ‘right’ vested in him over the goods. The goods were undisputably purchased by the ‘Corporate Debtor’. Applicability of Section 48 of the Customs Act, 1962 - HELD THAT:- In case of non-clearance of the goods within 30 days or within extended period or if the title of any imported goods is relinquished after notice to the importer and with the permission of the proper officer, the goods can be sold by the Custom Authority. Section 48 of the Customs Act, 1962 relates to sale of goods in the custody of the Customs in the manner prescribed therein. - In the present case, having failed to auction the goods prior to the CIRP period, the ‘Customs Dept.’ cannot now, subsequent to the imposition of Moratorium, proceed to auction the goods. Having done so, the sale proceeds of the so conducted auction cannot be made over to the ‘Customs Dept.’. It is relevant to mention that a Review Application has been filed before the Adjudicating Authority on 30.08.2019 which was dismissed vide Order dated 19.11.2019 and the Customs Authority was directed to make payment to the ‘Corporate Debtor’. Company Appeal is dismissed. Company Appeal preferred by the ‘Customs Dept.’ is partly allowed the penalty imposed by the Adjudicating Authority of ₹ 1 Lakh per day is set aside and the direction of the Adjudicating Authority that the ‘Customs Dept.’ shall have the right to submit their Claim with the Liquidator and would be treated as ‘Operational Creditor’, is confirmed.
|