TMI Blog2022 (3) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... infructuous, nonest and is disposed of as abated - the provision itself makes it clear that if in case the revenue is dissatisfied in any manner with the sanctioning of the resolution plan by the National Company Law Tribunal then the liberty is always reserved in favour of the revenue to prefer an appeal under Section 61 of the Code, 2016 before the National Company Law Appellate Tribunal. The present writ application does not survive and is hereby disposed of as abated and infructuous. - R/SPECIAL CIVIL APPLICATION NO. 9153 OF 2017 WITH CIVIL APPLICATION (FOR DIRECTION) NO. 1 OF 2021 IN R/SPECIAL CIVIL APPLICATION NO. 9153 OF 2017 - - - Dated:- 17-2-2022 - HONOURABLE MR. JUSTICE J.B.PARDIWALA AND HONOURABLE MS. JUSTICE NISHA M. THAKORE MR DHAVAL SHAH FOR THE PETITIONER MR DEVANG VYAS WITH MR DHAVAL VYAS VIRAL K SHAH FOR THE RESPONDENT ORDER PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE 1. By way of this writ application under Article 226 of the Constitution of India, the writ applicant seeks relief of issuance of writ of mandamus/certiorari to quash and set aside the order dated 18.01.2017 passed by the Commissioner of Central Excise, Surat- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise, Surat, do not reflect any specific answer to the above submissions. 4. We have perused the relevant orders passed by the appellate authority/CESTAT and the High Courts' initial order on 26.10.2005 and 21.1.2006 in Special Civil Application No. 12720 of 2002 wherein show cause notice dated 25.1.1999 was the same. 5. We are of the view prima facie, that earlier decisions of the appellate authority not contained comments/opinion etc., but decision was rendered after considering relevant aspects namely, facts as well as law and in turn the competent authority was directed to decide the case based on observations made therein by the appellate authority. 6. The matter deserves consideration, hence, Rule returnable on 20.12.2018. 7. Ad-interim relief to continue as interim relief till final disposal. 3. During the pendency of the final hearing of this writ application, a vital development has taken place, which has been brought on record by the writ applicant in the form of Civil Application bearing No.1 of 2021 whereby the writ applicant has prayed for appropriate directions inter-alia seeking disposal of the petition being treated as abated and re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g exempted in terms of Notification bearing No.8/96-CE as well as raising issue of demand being time barred. However, the Deputy Commissioner of Central Excise, Division 2, Surat 1, by order dated 31.12.2000 was pleased to declare that the writ applicant company s goods are excisable as being classified under Chapter sub heading 5402.43 of CETA and were therefore subjected to duty under the Act. 4.5 The writ applicant company was constrained to approach the first appellate authority namely the Commissioner (Appeals), whereby the attention was once again drawn of the appellate authority about the entitlement of exemption in terms of the notification. The aforesaid appeal preferred by the writ applicant came to be allowed vide order dated 04.02.2003 in line of the earlier order dated 05.02.1998. 4.6 The said order was challenged by the Revenue Department before the Appellate Tribunal whereby the Appellate Tribunal vide order dated 24.11.2004 remanded the matter back to the adjudicating authority with a further direction to hear the matter with the case remanded vide order dated 05.02.1998. 4.7 It is the case of the writ applicant company that both these cases are pending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Pvt. Ltd. vs. Edelweiss Asset Reconstruction Company Ltd. reported in (2021) 9 SCC 657 wherein the Supreme Court took the view as regards 2019 amendment being incorporated to Section 31 of the Insolvency and Bankruptcy Code, 2016 being treated clarificatory and declaratory in nature and thereby treating it to have come into effect retrospectively. The relevant observation as recorded in paragraph 138 of the aforesaid decision are reproduce as under: In the foregoing paragraphs, we have held, that 2019 amendment to Section 31 of I B Code is clarificatory and declaratory in nature and therefore will have a retrospective operation. As such, when the resolution plan is approved by NCLT, the claims, which are not part of the resolution plan, shall stand extinguished and the proceedings related thereto shall stand terminated. Since the subject matter of the petition are the proceedings, which relate to the claims of the respondents prior to the approval of the plan, in the light of the view taken by us, the same cannot be continued. Equally the claims, which are not part of the resolution plan, shall stand extinguished. 9. In view of the aforesaid legal position as wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion plan does not comply with any other criteria specified by the Board. (4) An appeal against a liquidation order passed under section 33 may be filed on grounds of material irregularity or fraud committed in relation to such a liquidation order. 10. Thus, we find that the provision itself makes it clear that if in case the revenue is dissatisfied in any manner with the sanctioning of the resolution plan by the National Company Law Tribunal then the liberty is always reserved in favour of the revenue to prefer an appeal under Section 61 of the Code, 2016 before the National Company Law Appellate Tribunal. 11. For the reasons stated above, the present writ application does not survive and is hereby disposed of as abated and infructuous. We further clarify that we have otherwise not expressed any opinion on the merits of the case and at the same time, we reserve the liberty in favour of the revenue department to file appropriate proceedings or an appeal as provided under Section 61 of the Code, 2016. Resultantly, the civil application bearing No.1 of 2021 filed in the main writ application also stands disposed of accordingly. Notice stands discharged. - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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