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TMI Blog2022 (11) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... n exercise of powers conferred under Section 31 of the I&B Code, 2016. Brief Facts: Appellant's Submissions: 2. The Learned Counsel, appearing for the Appellant has submitted that the present Appeal is preferred being aggrieved by the aforesaid order. 3. It is submitted that the Appellant is the Department of Customs and falls under the category of Operational Creditor of the Corporate Debtor since the Corporate Debtor is liable to pay the customs duty. 4. It is submitted that the Corporate Debtor had imported capital goods on 31.08.2010 vide four bills of entry valued at Rs. 9,83,28,413/- at zero rate of duty of customs under EPCG authorization and forgone customs duty Rs.1,37,97,465/-. The Appellant, on 03.08.2017, issued summons to explain the reasons for non-fulfilment of export obligation mandated against EPCG authorization issued to them for duty free import of capital goods. On 01.02.2018, the Chief Operating Officer of the Corporate Debtor appeared and explained that they will deposit Rs.20 lacs on account of customs duty forgone on import under EPCG scheme at nil rate duty of customs duty. Further it says that the Corporate Debtor is committed to pay the remaining dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Respondent, at the outset, submitted that the appeal against the order approving the resolution plan may be filed on the grounds as enumerated under Section 61(3) of the I&B Code, 2016, however from the grounds of the present Appeal it does not satisfy that it covers the same and deserves to be dismissed. 10. It is submitted that the Resolution plan for the Corporate Debtor was approved by the Committee of Creditors in exercise of the powers enumerated under Section 30 of the I&B Code, 2016 and that the commercial wisdom of the creditors is paramount and cannot be interfered with as held by the Hon'ble Supreme Court in K. Shashidhar Vs. Indian Overseas Bank & Ors. in Civil Appeal No. 10673 of 2018 para 31 & 33. 11. It is submitted that the claim filed by the Appellant is highly belated. It is submitted that pursuant to the commencement of CIRP of the Corporate Debtor dated 03.12.2018, the IRP issued a public announcement dated 06.02.2018 in Form-A as per Section 15 of the Code read with Regulation 6 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, to intimate regarding the CIRP of the Corporate Debtor and to call for the submission of claims. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In support of this contention the Learned Counsel relied upon judgment of the Hon'ble Supreme Court in India Resurgence ARC Pvt. Ltd. Vs. Amit Metaliks Ltd. & Anr. in Civil Appeal No. 1700 of 2021 para 10. 14. The Learned Counsel submitted that against the very same impugned order dated 02.01.2020 an appeal was preferred before this Tribunal by PNC Infratech Ltd. Vs. Deepak Maini & Ors. in CA (AT) (Ins) No.143 of 2020 and this Tribunal vide its judgment dated 22.08.2022 dismissed the said Appeal by confirming the impugned order. Therefore, the Learned Counsel submitted that the impugned order dated 02.01.2020 (approval of Resolution Plan) attained its finality and submitted that the present appeal against the same impugned order, becomes Otios and liable to be dismissed. 15. In view of the reasons as stated above the Learned Counsel prayed this Bench to dismiss the Appeal. Analysis / Appraisal : 16. Heard the Learned Counsel appeared for the respective parties perused the pleadings, documents and citations relied upon by them. After analysing the pleadings, the moot point is whether the Appellant has made out any prima facie case to allow the Appeal as prayed for. 17. Admitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entation. 4. Prayer, Reliefs & Concessions In relation to 'Any Other Liabilities' the NCLT Approved Resolution Plan has specifically mentioned in Part VIII as 'Prayer, Reliefs & Concessions' which states as follows: "a. ..... b. ..... c. ..... d. The Learned Adjudicating Authority may kindly give appropriate directions to various tax authorities including CBDT and CBEC for waiver of any past liabilities, (known, unknown, accused or non-accused irrespective whether claimed or unclaimed from any authority) including but no limited to any potential MAT liability, potential liability under section 56, 50 CA and other sections of the Income Tax Act, interest/penalty etc. which may be levied by any authority upon and in relation to the implementation of this Resolution Plan. e. The Learned Adjudicating Authority may kindly give appropriate directions to various tax authorities such as GST, Sales Tax, Professional Tax, Sales Tax Deferral Schemes, or any other Taxes (Central or State or local) etc. for waiver of any past liabilities irrespective whether claimed or unclaimed from any authority and including any penal charges for past non-compliance of filings, forms, other ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Further, section 32A of the Insolvency and Bankruptcy Code, 2016 provides immunity to the corporate debtor for an offence committed prior to the commencement of the corporate insolvency resolution process. The said section reads as follows: (ii) a person with regard to whom the relevant investigating authority has, on the basis of material in its possession reason to believe that he had abetted or conspired for the commission of the offence, and the submitted or filed a report or a complaint to the relevant statutory authority or Court. Explanation. - For the purposes of this sub-section, it is hereby clarified that, - (i) an action against the property of the corporate debtor in relation to an offence shall include the attachment, seizure, retention nor confiscation of such property under such law as may be applicable to the corporate debtor; (ii) nothing in this sub-section shall be construed to bar an action against the property of any person, other than the corporate debtor or a person who has acquired such property through corporate insolvency resolution process or liquidation process under the Code and fulfils the requirements specified in this section, against wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt being an Operational Creditor of the Corporate Debtor filed its claim and is entitled to claim from the Corporate Debtor. Per contra the stand of the Respondent is that the Appellant has not filed its claim within the time as prescribed under the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, therefore, the claim is barred by limitation, accordingly, the claim has not been considered. 21. It is an admitted fact that the Appellant filed its claim on 24.07.2019 whereas the public announcement was made on 06.12.2018 and it has been widely circulated in the English and Hindi newspapers and also posted on the IBBI website. The last date for submission of claim was 17.12.2018, however, the Appellant has not filed its claim within the time. 22. In this regard, it is apt to refer Rule 12 of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, for better appreciation, the said Rule deal with 'submission of proof of claims'. Sub-rule (2) thereof thus read as under: "(2) A creditor, who fails to submit claim with proof within the time stipulated in the public announcement, may submit the claim with proof to the interim resolution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0(4) of the Code and has the requisite statutory voting share. Further, it is stated that the decision of the Committee of Creditors is a reasoned and self-speaking one as required under proviso to Regulation 39(3) of the CIRP Regulations, 2016. Further, at para 57 it is stated that "it is well settled proposition of law that commercial and business decisions of Committee of Creditors are not open to judicial review. The Adjudicating Authority cannot enquire into the commercial wisdom of Committee of Creditors. The ground for rejection is limited to the matter specified under Section 30(2). It is however reiterated that the resolution plan in question meets the requirements specified in Section 30(2) of the Code and the reasoned commercial decision of Committee of Creditors is neither discriminatory nor perverse" with the aforesaid observations the plan has been approved. 27. Once the plan is approved by the Adjudicating Authority under Section 31(1) of the Code, it shall be binding on the Corporate Debtor and its employees, members, creditors (including the Central Government, any State Government or any local authority to whom a debt in respect of the payment of dues arising und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground to the commercial wisdom of the creditors rather than assess the resolution plan on the basis of quantitative analysis. Such is the scheme of the Code. Section 31(1) of the Code lays down in clear terms that for final approval of a resolution plan, the Adjudicating Authority has to be satisfied that the requirement of sub-section (2) of Section 30 of the Code has been complied with. The proviso to Section 31(1) of the Code stipulates the other point on which an Adjudicating Authority has to be satisfied. That factor is that the resolution plan has provisions for its implementation. The scope of interference by the Adjudicating Authority in limited judicial review has been laid down in the case of Essar Steel (supra), the relevant passage (para 54) of which we have reproduced in earlier part of this judgment. The case of MSL in their appeal is that they want to run the company and infuse more funds. In such circumstances, we do not think the Appellate Authority ought to have interfered with the order of the Adjudicating Authority in directing the successful Resolution Applicant to enhance their fund inflow upfront." 31. Admittedly, the Appellant has not filed its claim with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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