TMI Blog2019 (12) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... explanation below Section 18 (1) (f) (g) is not applicable. Therefore, the Resolution Professional has right to take control and custody of any asset, though the Customs Authority is in possession of the same for the present - during the period of Moratorium , the assets of the Corporate Debtor cannot be alienated, transferred or sold to a third party. 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 - 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. No interference is called for against the impugned order dated 3rd July, 2018 passed by the Adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th August, 2016 and 4th October, 2016 but the same could not be fructified on account of non-participation of any buyers. The Appellant granted three months time vide letter dated 16th February, 2017 sought by 1st Respondent to clear the cargo from the custody of the customs authorities after paying the duties. The Appellant vide letter dated 30th August, 2017 reinitiated the process for disposal of the said uncleared cargo by way of auction for the fourth time. The Adjudicating Authority vide its order dated 8th January, 2018 allowed the application under Section 10 of the I B Code filed by 1st Respondent for Corporate Insolvency Resolution Process and declared Moratorium under Section 14 of the I B Code . In pursuance of letter dated 30th August, 2017 the custodian, i.e. 3rd Respondent conducted an e-auction dated 19th January, 2018, wherein 4th Respondent had proposed the wining bid. On 20th January, 2018, the Appellant received the copy of the letter dated 16th January, 2018 sent by 1st Respondent and letter dated 17th January, 2018 sent by 2nd Respondent conveying the order of Adjudicating Authority dated 8th January, 2018. On 3rd July, 2018, 2nd Respondent fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that Section 48 of the Customs Act, 1962 allows Customs authorities to dispose unclaimed, uncleared, non-duty paid imported goods after providing the importer with thirty-day notice. 9. It is further submitted by learned counsel for the Appellant that the Appellant had duly complied with the provisions of Section 48 of the Customs Act, 1962 and after the expiry of the statutory period the importer s interest, i.e. 1st Respondent, in the imported good was confined to a reminder interest as provided in Section 150 of the Customs Act, 1962 . 10. Learned counsel for the Appellant submitted that the impugned order s reliance on Section 238 of the I B Code is unsustainable. 11. According to the Resolution Professional, the Corporate Insolvency Resolution Process of the 1st Respondent was initiated vide Order Dated 8th January, 2018 by the Adjudicating Authority. Admittedly, the Appellant / 3rd Respondent issued the e-auction notice on 15th January, 2018, fixing date of auction of the goods on 19 th January, 2018. Thereafter, vide letter dated 16th January, 2018, the Managing Director of the 1st Respondent informed the Appellant/ 3rd Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itle/ ownership of the goods to Respondent, who, in accordance with law, was required to release the goods to the Corporate Debtor on payment of customs duty. 15. From the submissions made by the Appellant and the record, it is clear that the Corporate Debtor had imported the two consignments i.e. the machineries, in question, from Italy in the year 2009 which arrived at ICD Durgapur on 13th April, 2009 and 27th April, 2009 respectively. Thereby, it is clear that the machineries, in question, belonged to the Corporate Debtor (1st Respondent). 16. Section 48 of the Customs Act, 1962 relates to procedure in case of goods not cleared within the prescribed period, which reads as follows: 48. Procedure in case of goods not cleared, warehoused or transhipped within thirty days after unloading.- If any goods brought into India from a place outside India are not cleared for home consumption or warehoused or transhipped within thirty days from the date of the unloading thereof at a customs station or within such further time as the proper officer may allow or if the title to any imported goods is relinquished, such goods may, after notice to the impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wned 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) such other assets as may be notified by the Central Government in consultation with any financial sector regulator. 19. As we have seen that the ownership rights of the machineries, in question, is of the Corporate Debtor and not of a third party, explanation below Section 18 (1) (f) (g) is not applicable. Therefore, the Resolution Professional has right to take control and custody of any asset, though the Customs Authority is in possession of the same for the present. 20. Section 14 of the I B Code relates to Moratorium and reads as follows: 14. Moratorium.-( 1) Subject to provisions of subsections (2) and (3), on the insolvency commencement date, the Adjudicating Authority shall by order declare moratorium for prohibiting all of the following, namely:- (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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