TMI Blog2023 (8) TMI 1139X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners. According to the respondents since the present proceedings arise out of the adjudication undertaken by the Joint Commissioner, CGST and Central Excise with regard to input tax credit being availed by the petitioners and it having been found that such input tax credit was wrongly availed by the petitioners, the proceedings could not be treated to be recovery proceedings. The petitioners having wrongly utilized the assets in the form of input tax credit it was merely a case of reversal of such credit and the same was beyond the purview of the I B Code, 2016. It is seen from the impugned orders that the Joint Commissioner has proceeded to consider the entitlement of the petitioners to availing the aforesaid Cenvat Credit and on finding the petitioners not entitled to do so, recovery of the said amount with interest has been directed. The provisions of Section 11A of the Act of 1944 pertain to recovery of Central Excise and since such direction is contained in the impugned orders it cannot be said that the said orders merely determined the liability of the petitioners to claim Cenvat Credit. The ratio of the decisions in ALD Automotive (P) Ltd. and TVS Motor Company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision it is held that the petitioners would be entitled to receive the amount of pre-deposit if made alongwith interest at the prevailing bank rates. Thus, it is held that for failure to make any claim of the amounts recoverable under Section 11A of the Act of 1944 the claims in that regard stand extinguished in view of the decision in Ghanashyam Mishra And Sons - amount of pre-deposit if any made by the petitioners shall be refunded with interest at the prevailing bank rates within a period of eight weeks of the date of the judgment - petition disposed off. - A. S. CHANDURKAR AND MRS. VRUSHALI V. JOSHI, JJ. For the Petitioners : Shri S. Sriram with Shri Shreyash Agrawal, counsel. For the Respondent : Shri N.S. Deshpande, Deputy Solicitor General of India no. 1. For the Respondent : Shri S.N. Bhattad, counsel nos. 2 and 3. JUDGMENT (PER : A.S. CHANDURKAR, J.) RULE. Rule made returnable forthwith and heard the learned counsel for the parties. 2. The challenge raised in the present writ petition is to the orders dated 31.07.2020 and 31.12.2020 passed by the Joint Commissioner, Central Goods and Services Tax and Central Excise, Nagpur-II ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner no. 2 the orders that were passed on 12.07.2020 and 31.12.2020 by the Commissioner, Central Excise were not made the subject matter of claims before the Resolution Professional. As a result, the aforesaid claims stood extinguished and no recovery for the said amounts could be effected. During pendency of the proceedings the petitioner no. 2 was proposed to be amalgamated into M/s Ascension Mercantile Private Limited under the Composite Scheme of Arrangement and Amalgamation dated 11.05.2022. By amending the writ petition, the said Company has been brought on record. 4. Shri S.Sriram, learned counsel appearing for the petitioners submitted that in absence of any claim being made by the respondent no. 2-Joint Commissioner, CGST and Central Excise as well as the Commissioner of CGST and Central Excise with regard to dues adjudicated pursuant to the orders dated 31.07.2020 and 31.12.2020, the dues stated therein stood extinguished. Inviting attention to the list of claimants who had lodged their claims under the I B Code including the list of statutory Authorities it was pointed out that certain claims were infact lodged by the respondent no. 3. However since it was found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be directed to be refunded with interest. In addition, it was submitted that the impugned adjudication was undertaken without the petitioners being heard inasmuch as the said proceedings were held between 20.10.2020 and 08.12.2020. Hearing was granted only in the proceedings that were decided on 31.07.2020. Since there was lack of jurisdiction with the respondent nos. 2 and 3 to proceed with regard to the aforesaid amounts, the petitioners were entitled for the reliefs as prayed for. 5. Shri S.N. Bhattad, learned counsel for the respondent nos. 2 and 3 opposed the aforesaid submissions. At the outset it was submitted that the impugned orders as passed could be subjected to statutory appeal under the provisions of Central Excise Act, 1944 and there was no exceptional case made out to intervene in writ jurisdiction. The petitioners having participated in the enquiry by raising objections and those objections having been dealt with while passing the impugned orders, it was open for the petitioners to raise a contention before the Appellate Authority. The learned counsel further submitted that the present proceedings pertain to availing of input tax credit. The petitioners having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners. According to the respondents since the present proceedings arise out of the adjudication undertaken by the Joint Commissioner, CGST and Central Excise with regard to input tax credit being availed by the petitioners and it having been found that such input tax credit was wrongly availed by the petitioners, the proceedings could not be treated to be recovery proceedings. The petitioners having wrongly utilized the assets in the form of input tax credit it was merely a case of reversal of such credit and the same was beyond the purview of the I B Code, 2016. In this regard, it would be necessary to peruse the impugned orders passed by the Joint Commissioner. Each proceeding pertains to Cenvat Credit being availed by the petitioners on capital goods under the Cenvat Credit Rules, 2004 (for short, the Rules of 2004 ). Out of the total Cenvat Credit availed, the Joint Commissioner has allowed part of such Cenvat Credit and has directed recovery of the balance amount of Cenvat Credit on the ground that it has been wrongly availed. Recovery has been directed under Section 11A of the Act of 1944 read with Rule 14 of the Rules of 2004. In addition, penalty has also been impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y proceedings for recovery of any of the dues from the Corporate Debtor, which are not a part of the Resolution Plan approved by the adjudicating authority ? After referring to the principal aspects of the I B Code, 2016 which includes providing for revival of the Corporate Debtor and to make it a growing concern it has been held that the I B Code, 2016 is a complete Code in itself. By amending the I B Code, 2016 in the year 2019 the stakeholders such as Central Government, any State Government or any Local Authority was included therein. It was thus held that these Authorities would be bound by the Resolution Plan once it is approved by the Adjudicating Authority which was in the said case the NCLT. While answering the question as framed, it was held that on the date of approval of the Resolution Plan by the Adjudicating Authority, all such claims that were not a part of the Resolution Plan would stand extinguished and no person would be entitled to initiate or continue any proceedings in respect of a claim which is not part of the Resolution Plan. The amendment of 2019 was held to be clarificatory and declaratory in nature. It was thus effective from the date on which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lution Plan, the aspect of the bar to entertain the writ petition on availability of alternate remedy loses its significance. The challenge as raised to the impugned orders on the aforesaid ground will therefore have to be entertained. 10. Coming to the decision of the Hon ble Supreme Court in Glaxo Smith Cline Consumer Healthcare Limited (supra) it is seen that therein an order of assessment came to be passed on 21.06.2017. Against the order of assessment, the assesse filed an appeal but the same was dismissed as being barred by limitation. The assesse thereafter challenged the order of assessment dated 21.06.2017 by filing a writ petition in the High Court under Article 226 of the Constitution of India. The order passed by the Appellate Authority dismissing the statutory appeal was not challenged. In that context, it was held by the Hon ble Supreme Court that having availed the remedy of statutory appeal and the same having been found to be beyond the period of limitation, it was not permissible for the High Court to have disregarded the expiry of the statutory period provided for challenging the initial order and thereafter entertain the writ petition as a matter of course. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Soya Industries Ltd. (supra) in such situation when the proceedings are held to be not maintainable on the ground that the claim was not part of the Resolution plan, the amount of pre-deposit made by the petitioners is liable to be directed to be refunded with accrued interest. Following the aforesaid decision it is held that the petitioners would be entitled to receive the amount of pre-deposit if made alongwith interest at the prevailing bank rates. 13. Accordingly, the following order is passed :- (I) The orders bearing No. Order 372/CEX/2020/C/NGP-I, dated 31.07.2020; Order 20/CE/JC/NGP-II/2020, dated 31.12.2020; Order 19/CE/JC/NGP-II/2020, dated 31.12.2020; and Order 18/CE/JC/NGP-II/2020, dated 31.12.2020 passed by the Joint Commissioner, Central Goods and Services Tax and Central Excise, Nagpur-II, Commissionerate are set aside. (II) It is held that for failure to make any claim of the amounts recoverable under Section 11A of the Act of 1944 the claims in that regard stand extinguished in view of the decision in Ghanashyam Mishra And Sons (supra). (III) The amount of pre-deposit if any made by the petitioners shall be refunded with interest at the prevail ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
