TMI Blog2022 (11) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... nt who has to decide whether any dues is recoverable or otherwise, in the light of the resolution plan approved by the NCLT. 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 (4) TMI 613 - SUPREME COURT ], 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 Act, even though the Insolvency and Bankruptcy Code have over riding effect over all the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .07.2019. 02. Shri Rajesh Rawal and Shri Dhaval Shah, Advocates appeared on behalf of the applicant. Shri Dhaval Shah submits that as per the resolution plan approved by NCLT, no dues exists against the applicant therefore, the demand involved in the impugned order is not recoverable by the department consequently, the appeal becomes infructuous. 03. On the other hand Shri G. Kirupanandan, learned Superintendent (AR) appearing on behalf of the revenue submits that on the direction of this Hon ble Tribunal jurisdictional CGST office was asked as to whether any claim was filed before the resolution professional in the present appeals. He vide letter dated 08.08.2022 submitted that in respect of appeal No.C/11093/2018, ST/10366/2020 ST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant 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. 4.1 We also find that on record and submission of the learned AR, it is on record that the revenue has filed an appeal under Section 42 of IBC, 2016 before NCLT- Mumbai vide letter dated 02.09.2020 however, there is no material on record to know that whether there is any outcome of the said appeal. 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 Son ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be taken in a case where the IBC proceedings is in progress before NCLT/NCLAT or at higher forum. The assessee against whom the IBC proceedings are initiated invariably approach this tribunal through miscellaneous application for disposing of the appeals in the light of the NCLT s orders. However, in the absence of any guideline by the CBIC, the departmental representative are unaware as to what stand is to be taken in such cases. Therefore, we are of the view that the Central Board of Indirect Taxes Customs may consider issuing guideline/procedure for dealing with the case before this tribunal wherein, against the assesse s company IBC proceeding has been initiated. Copy of this order be sent to the Chairman-CBIC by speed post. (Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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