TMI Blog2023 (5) TMI 1199X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.16,41,96,213.38/- Principal amount and applicable GST making a total amount of Rs.18.68,55.290.82/-. On deposit of the aforesaid amount, thus, the debt as was claimed in the application stood paid. The order further notice that submission was made on behalf of the learned senior counsel for the Appellant that in view of the aforesaid deposit, the application should be rejected, which was opposed by learned counsel for the Respondent stating that interest is also to be paid by the Corporate Debtor - Operational Debt as was claimed in the application under Section 9 which is apparent from Part IV of the Application which clearly states that the Operational Debt was only Rs.17,24,06,024/- and Applicant has reserved its right to claim further interest, penalties or delayed charges, etc. - On payment of entire Operational Debt as was claimed in the application, there was no occasion to continue the Section 9 application any further. It is open for the Appellant to challenge the levy of interest, if they are so aggrieved to liability of interest which ultimately will come on them as per the supply agreement. Appellant cannot get away from liability of interest by saying that it has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the entire amount has not been paid by the Respondent/ Corporate Debtor. Interest amount is also to be paid by the Respondent/ Corporate Debtor. A total Amount of Rs. 10,59,37,689/- is yet to be deposited by the Corporate Debtor. In view of the recent development in the matter, both parties are permitted to settle the matter amicably within one week. 2. The Appellant who was Respondent in the Section 9 application impleaded as Corporate Debtor has come up in this Appeal challenging the order dated 28.11.2022. Brief facts of the case necessary to be noticed for deciding this Appeal are: i. The Respondent Operational Creditor entered into an agreement for supply and installation of Solar Photovoltaic Power Generation System with the Appellant - Hindustan Zinc Ltd. dated 30.04.2018. Supplier was to carry out work as per the Contract. Schedule IV of the Contract dealt with Contract Price and payment terms. As per Clause 4.2, the owner i.e. the Appellant was to pay Anti-dumping Duty and Safeguard Duty, if applicable. ii. At the time of entering into contract Safeguard Duty was not imposed. Vide Notification dated 30.07.2018, Safeguard Duty was imposed for the period 30. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,06,024/-. Section 9 application was filed on 16.07.2021. Parties were heard on issuance of notice by the Adjudicating Authority on 10.11.2021. The Adjudicating Authority, however, directed the Corporate Debtor to file its reply by order dated 10.11.2021. xi. On 07.09.2022, the Senior learned counsel for the Corporate Debtor submitted that once assessment of safeguard duty is done by the competent authority, the Appellant will make the payment of the same within the stipulated period and matter was adjourned to 11.10.2022. xii. The Customs Department issued a final assessment of Safeguard Duty on 04.10.2022 to the Operational Creditor demanding Safeguard Duty + GST + Interest. xiii. The Adjudicating Authority heard the parties and on 11.10.2022 reserved the orders. Additional written submission was filed on behalf of the Appellant where it was stated that on 14.11.2022, M/s Hindustan Zinc Ltd. has paid the entire claim amount of Rs.16, 41,96,213.38/- (principal amount) and further GST amount of Rs.18,68,55,290.82/-. It was stated that payment has been made under protest towards the principal amount based on the invoice dated 28.10.2022 issued by the Operational Creditor in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... priate appeal. Under the Contract between the parties, the Operational Creditor was required to indemnify the Appellant against all claims in connection to the Government taxes, duties, etc. Challenge to the safeguard duty itself is sub-judicate before the Hon ble Supreme Court and Hon ble High Court including Writ Petition filed by the Appellant. Appellant is a fully solvent company with a net worth of Rs.34,281 crores in the year 2021-22 with profit after tax of Rs.9,629 crores. There is no justification of initiating any insolvency proceeding against the Appellant. 5. Shri Paras Kuhad, learned senior counsel appearing for the Operational Creditor vehemently opposed the submissions of learned counsel for the Appellant. It is submitted that as per clause 4.2 of the Contract dated 30.04.2018, it is liability of the Appellant to pay the Safeguard Duty. The Appellant has undertaken to pay amount of Safeguard duty levied by the Government Authorities for import of solar modules including the interest thereon. In the Writ Petition filed by the Appellant before the Rajasthan High Court, no protective order has been passed. As per Section 47 of the Customs Act, 1962, imported goods we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant reserves the right to claim further interest, penalties and/or delayed charges on the aforesaid amounts, which may be levied by the Customs department and/or incurred by the Applicant, thereon as on the Insolvency Commencement Date of the Corporate Debtor. 8. In Part IV, under the heading Details of transactions on account of which debt fell due , in Para 26 and 27 following has been pleaded: 26. It is submitted that pursuant to the above, while finalizing the present petition, the Operational Creditor observed that an amount of Rs. 1,62,62,495.29/- has inadvertently been included in excess in the Demand Notice. Therefore, the actual amount of the demand towards Safeguard Duty is Rs. 17,24,06,024.33 (Rupees Seventeen Crores Twenty Four Lakhs Six Thousand and Twenty Four and Thirty Three Paise only) instead of Rs. 18,86,68,519.62/-. 27. The Applicant reserves the right to claim further interest, penalties and/or delayed charges on the aforesaid amounts, which may be levied by the Customs department and / or incurred by the Applicant, thereon as on the Insolvency Commencement Date of the Corporate Debtor. 9. In last p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in view of the aforesaid deposit, the application should be rejected, which was opposed by learned counsel for the Respondent stating that interest is also to be paid by the Corporate Debtor. 13. Operational Debt as was claimed in the application under Section 9 which is apparent from Part IV of the Application which clearly states that the Operational Debt was only Rs.17,24,06,024/- and Applicant has reserved its right to claim further interest, penalties or delayed charges, etc. We, thus, are of the view that on payment of entire Operational Debt as was claimed in the application, there was no occasion to continue the Section 9 application any further. 14. We also notice submission of learned counsel for the Respondent that the Appellant through its senior counsel has made categorical statement on 07.09.2022 that once assessment is made they shall make the payment, which statement clearly means that Appellant undertake to make the payment of assessed amount which includes Safeguard Duty and interest. 15. We may first notice the order dated 07.09.2022 passed by the Adjudicating Authority recording the aforesaid statement of learned senior counsel for the Appellant, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant as per the Supply Agreement, it was open for the Appellant to take such recourse in accordance with law challenging the levy of interest. 20. In view of the foregoing discussion, we, thus, are of the view that Section 9 application which was filed by the Operational Creditor, the entire Operational Debt having been paid by the Corporate Debtor, there is no useful purpose in continuing the Section 9 proceeding any further. The Adjudicating Authority ought to have closed the matter and the observation that the parties are permitted to settle the matter amicably within one week, was uncalled for. Thus, we are of the view that Appeal deserves to be allowed closing the application under Section 9 filed by the Operational Creditor being CP (IB) No. 81/9/JPR/2021. We, however, are also of the view that it is open for the Appellant to take such legal proceeding as he may be advised, challenging the levy of interest. The dismissal of Section 9 application filed by the Operational Creditor being CP (IB) No. 81/9/JPR/2021 shall not preclude the Operational Creditor to take such proceedings in law against the Corporate Debtor in event the liability of interest is not discharged b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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