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TMI Blog2019 (12) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 116 of 2018 in C.P. No. (IB)349(KB)/2017 in allowing Mr. Nilesh Sharma (Respondent No. 2) to remove machineries in question. 2. The brief facts of the present case are as follows: In the year 2009, 'Ramsarup Industries Ltd.'- ('Corporate Debtor') had imported two consignments of machineries from Italy by claiming benefit of EPCG scheme under FTP 2004-2009, which arrived at ICD Durgapur on 13th April, 2009 and 27th April, 2009 respectively. The assessment of goods were confirmed by the Assistant Commissioner of Customs, ICD Durgapur vide O-I-O No. 05/ICD-DGP/2010 dated 12th April, 2010 and the Respondent was directed to pay the Customs Duty of Rs. 1,39,89,366.00 with applicable interest. On 26th May, 2011 and 14th January, 2012, 1st Respondent made a payment of Rs. 11,00,000/- towards the duty assessed by the Appellant. In the year 2014, a Writ Petition No. 24579 (W) of 2014 was filed by the 'Corporate Debtor' against the departmental action initiated for disposal of uncleared imported cargo which was dismissed by the Hon'ble High Court of Calcutta vide order dated 10th September, 2014 for non-prosecution. In the year 2016, the Appellant by way of e-auction attempted thrice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce sheet. 5. According to counsel for the Appellant, the extent of 'Interim Resolution Professional's' power of control are co-terminus with the 'Corporate Debtor's' ownership rights and in the present case, the 'Corporate Debtor', i.e. 1st Respondent has never acquired complete ownership of the imported goods. It is submitted that the 1st & 2nd Respondents cannot allege that the imported goods were 'assets' of the 'Corporate Debtor', when customs duty leviable is yet to be discharged and the said goods are yet to be cleared for home consumption. 6. Reliance has been placed on the decision of the Hon'ble Calcutta High Court in "Collector of Customs v. Dytron (India) Ltd. MANU/WB/0334/1998" rendered in similar factual scenario of a liquidator disposing off uncleared imported goods under the Companies Act, 1956. In the said situation, it was also held that unless and until statutory duties are paid, the imported goods would not form part of 'assets' available for distribution by the company. 7. It is submitted that the 'Corporate Debtor's' ownership rights in the imported goods have been relinquished by operation of law contained in Section 48 of the 'Customs Act, 1962'. 8. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16th January, 2018 itself and the same was hand-delivered to the Appellant on 16th January, 2018 itself. Further, it is pertinent to mention here that 3rd Respondent has itself admitted that it was aware of the initiation of 'Corporate Insolvency Resolution Process' on 19th January, 2018, prior to the auction of the goods. 12. It is submitted by counsel for the 'Resolution Professional' that Section 238 of the 'I&B Code' specifically provides that the 'I&B Code' will override all other laws in case of any inconsistency, and accordingly Section 14 of the 'I&B Code' which provides for suspension / bar on all proceedings with regard to 'Corporate Debtor' post initiation of 'Corporate Insolvency Resolution Process' will be applicable to the present case. 13. It is further submitted that the goods under challenge were imported by the 'Corporate Debtor' / 1st Respondent and the invoices of the 'Corporate Debtor' / 1st Respondent have not been challenged, therefore clearly establishing the ownership of 'Corporate Debtor' to the said goods. 14. It is also submitted that the seizure of the goods by Appellant does not in any way transfer the title/ ownership of the goods to Respondent, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (f) take control and custody of any asset over which the corporate debtor has ownership rights as recorded in the balance sheet of the corporate debtor, or with information utility or the depository of securities or any other registry that records the ownership of assets including- (i) assets over which the corporate debtor has ownership rights which may be located in a foreign country; (ii) assets that may or may not be in possession of the corporate debtor; (iii) tangible assets, whether movable or immovable; (iv) intangible assets including intellectual property; (v) securities including shares held in any subsidiary of the corporate debtor, financial instruments, insurance policies; (vi) assets subject to the determination of ownership by a court or authority; (g) to perform such other duties as may be specified by the Board. Explanation.-For the purposes of this subsection, the term "assets" shall not include the following, namely:- (a) assets owned by a third party in possession of the corporate debtor held under trust or under contractual arrangements including bailment; (b) assets of any Indian or foreign subsidiary of the corporate debtor; and (c) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or liquidation order, as the case may be." 21. From the aforesaid provisions, it is clear that during the period of 'Moratorium', the assets of the 'Corporate Debtor' cannot be alienated, transferred or sold to a third party. 22. Section 48 of the 'Customs Act, 1962' relates to sale of goods in the custody of the Customs (machinery in question), in the manner as prescribed therein. The order of 'Moratorium' having passed by the Adjudicating Authority on 8th January, 2018, immediately thereafter it was not open to the Appellant, Commissioner of Customs or its authorities to issue an e-auction notice on 15th January, 2018, fixing date of auction of the goods on 19th January, 2018. 23. The aforesaid action on the part of the Appellant, officers of the Customs show that after their knowledge of the order of 'Moratorium' they intended to sell the machinery, in question, though it was lying with the Customs Authority since 13th April, 2009 / 27th April, 2009. 24. In view of the aforesaid findings, no interference is called for against the impugned order dated 3rd July, 2018 passed by the Adjudicating Authority prohibiting the Customs Authority from selling the assets of the 'Corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X
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