TMI Blog2022 (10) TMI 936X X X X Extracts X X X X X X X X Extracts X X X X ..... e said rule, it is held that Rule 22 is applicable only in case when the assessee is adjudicated as insolvent or in the case of a company when it is wound up - In the present case, the applicant being a company has not been wound up whereas, the same was revived under Insolvency Resolution process as per NCLT order. Moreover, in the present case, there is only change of name of the company from M/s. Binani Cement Limited to M/s. Ultratech Nathdwara Cement Limited in terms of certificate of incorporation pursuant to change of name issued by RoC therefore, the company has not been wound up and it is on going company, hence, rule 22 is not applicable. As per the resolution plan approved by the NCLT and in the light of Hon ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e demand involved in the impugned order is not recoverable by the department consequently, the appeal becomes infructuous. 03. On the other hand Shri Dharmendra Kanjani, learned Superintendent (AR) appearing on behalf of the revenue raised the preliminary objection. He submits that in the present case, the appellant M/s. Binani Cement Limited became insolvent therefore, the appeal needs to be abated. He further submits that if at all, the present applicant wish to continue the proceedings before this tribunal, the application should have been made within a period of 60 days from the date of declaration of the assessee as insolvent. Since in this case, the assessee has not filed application they cannot continue the proceeding before this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obligations towards all the creditors; 6.5.2.9 pursuant to the discharge and payment of the Resolution Amount as per the terms herein , all obligations, promises or commitments made or guarantee given by, or on behalf of the Corporate Debtor whatsoever, (whether oral or written) for the payment of any amount or incurring of any liability or assumption of any liability/obligation or claim against the assets of the Corporate Debtor (whether known or unknown, liquidated or unliquidated, contingent or otherwise) shall stand extinguished, released and discharged, without any further act, instrument or deed by the Corporate Debtor, and no Person shall have any claim whatsoever against the Corporate Debtor or the Resolution Applicant in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bilities including Liabilities in respect of the said Litigations will be NIL and there shall be no recourse against the Corporate Debtor or the Resolution Applicant in respect of the same; From the above terms of the resolution plan approved by the NCLT, it prima facie appears that the appellant is not liable to pay any dues. However, this tribunal is not competent to decide regarding the recovery of any dues. It is the department who has to decide whether any dues is recoverable or otherwise, in the light of the resolution plan approved by the NCLT. As regard the submission made by learned AR that the applicant has not filed an application for continuance of the proceeding in terms of Rule 22 of the CESTAT Procedure Rules, 1982, after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed the NCLT and lodged its claim against adjudged dues in the impugned order and status thereof. For this reason also, this tribunal cannot conclude about the recovery of the adjudged dues. 4.2 From the above facts, we find that as per the resolution plan approved by the NCLT and in the light of Hon ble Supreme Court judgment in the case of Ghanashyam Mishra Sons Pvt. Ltd.-2021 SCC Online SC 313, it prima facie appears that the adjudged dues cannot be recovered by the department however, this issue has to be decided by the department and not by this tribunal. For this reason, that firstly, there is no provision made in the Customs and Central Excise Act to give effect of NCLT proceedings. This tribunal being creature under the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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