TMI Blog2022 (10) TMI 1190X X X X Extracts X X X X X X X X Extracts X X X X ..... r 33(5) of the IBC as the case may be, the respondent authority only has a limited jurisdiction to assess/determine the quantum of customs duty and other levies. The respondent authority does not have been the power to initiate recovery of dues by means of sale/confiscation, as provided under the Customs Act. Whether the Intervenor can raise a fresh issue in the appeal instead of taking the side of one of the parties before the Court? - HELD THAT:- Admittedly the Intervenor had filed its own appeal in order to challenge the findings recorded in its I.A. No. 22 of 2019 but their Appeal No. 94 of 2020 was dismissed on 20.01.2020. The Hon ble Supreme Court in the case of Saraswati Industrial Syndicate Ltd. [ 1999 (3) TMI 3 - SUPREME COURT ] has observed that We cannot pass such an order in an intervention application. The only purpose of granting an intervention application is to entitle the intervener to address arguments in support of one or the other side. Having heard the arguments, we have decided in the assessee s favour. The interveners may take advantage of that order. No other point has been raised - there are no merit in the present appeal and the same is hereby d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Liquidator account within two weeks of the receipt of the order. (iii) The Receivers No.3 to 9 are directed to hand over possession of the properties as per the list Annexure-K within two weeks of the date of the order. 2. In brief, an application under Section 7 of the Code was filed by Abhishek Stock Broking Services Pvt. Ltd. 3 Others. for Initiation of Corporate Insolvency Resolution Process (in short CIRP ) against the Respondent herein, namely, Shree Ganesh Jewellery House (I) Ltd. (Corporate Debtor). The said application was admitted by the National Company Law Tribunal, Kolkata Bench, Kolkata vide its order dated 12.02.2018 by which Manish Jain was appointed as the Interim Resolution Professional and moratorium in terms of Section 13 and 14 of the Code was imposed. The order dated 12.02.2018 admitting the Application filed under Section 7 of the Code was not challenged by the Corporate Debtor and attained finality. 3. The present Appellant, namely, Directorate of Revenue Intelligence (DRI) seized various immovable and movable assets of the Corporate Debtor on 23.02.2018 under Section 110 of the Customs Act, 1962 (in short Act ) in an ongoing investigation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aggrieved against the order, passed in Misc. Application No. 22/KB/2019, statutory appeal was filed in terms of Section 61 of the Code, titled as Manikanchan Special Economic Zone Vs. M/s Shree Ganesh Jewellery House Ors. in Company Appeal (AT) (Insolvency) No. 94 of 2020 but the said appeal was dismissed on 20.01.2020 with the following order: 20.01.2020 As the appeal is barred by limitation having filed after about 210 days, we are not inclined to interfere with the appeal. Learned counsel for the Appellant submits that from the same very impugned order dated 23rd April, 2019 the other aggrieved person moved an appeal which is pending and the Appellant will intervene in the said appeal. In the circumstances, while we dismiss the appeal being not maintainable and barred by limitation, give liberty to the Appellant to move intervention application in the appeal, if any pending, against the impugned order dated 23rd April, 2019. 8. It is pertinent to mention here that after the dismissal of the appeal and liberty having been granted by this Tribunal, the aforesaid Appellant (SEZ) filed an I.A. No. 970 of 2020 to intervene in this matter. 9. Counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost his appeal and is thus not eligible to raise this argument which was the part of his appeal. It is further submitted that he could either take the side of either of the parties who are before the Court and in this regard, reliance has been placed on a decision of the Hon ble Supreme Court in the case of Saraswati Industrial Syndicate Ltd. Vs. Commissioner of Income Tax Haryana, Tohtak (1999) 3 SCC 141. 12. We have Heard Counsel for the parties and perused the record. The issues involved are as to: (i) whether the provisions of the IBC would prevail over the Customs Act? and (ii) whether the Intervenor can raise a fresh issue in the appeal instead of taking the side of one of the parties before the Court? 13. In so far as the first question is concerned, the answer is no more res-integra in view of the decision of the Supreme Court in the case of Sundaresh Bhatt (supra). In the said case also the same issue was involved and the Hon ble Supreme Court has answered the issue in the following manner: 53. For the sake of clarity following questions, may be answered as under: a) Whether the provisions of the IBC would prevail over the Customs Act, and if so, to what ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal and the same is hereby dismissed. 16. Since we have dismissed the Appeal, therefore, the order of stay granted by this Tribunal is hereby vacated automatically and the period which has been spent during this litigation available to the liquidator is excluded. Company Appeal (AT) (Insolvency) No. 1230 of 2022 17. Since we have dismissed the Application for condoning delay in filing of the appeal by a separate order passed today, therefore, this Appeal is not found duly constituted and therefore the same is hereby dismissed. All other applications, if any, pending also dismissed. I. A. No. 3752 of 2022 18. This Application is filed under Section 151 of CPC for Condonation of Delay in filing of the Appeal against the order dated 14.09.2018 passed by the NCLT, Kolkata Bench, Kolkata in C.A. (I.B.) No. 839/KB/2018 in C.P. (I.B.) No. 579/KB/2017 titled as Directorate of Revenue Intelligence Vs. Shree Ganesh Jewellery House Ors. 19. In brief, the Company Appeal (AT) (Insolvency) No.1230 of 2022 is directed against the order dated 14.09.2018 by which the Tribunal had appointed the Liquidator. It is needless to mention that limitation to file an appeal agains ..... X X X X Extracts X X X X X X X X Extracts X X X X
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