TaxTMI 
TaxTMI 
2023 (1) TMI 193
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....deciding this Appeal are:- 2.1. Corporate Insolvency Resolution Process (CIRP) proceedings were initiated against the Corporate Debtor- 'M/s. Apple Industries Limited'. The Adjudicating Authority directed the Corporate Debtor for liquidation. In the liquidation proceeding, the liquidator filed an Application IA No. 1842/ND/2021 praying following reliefs:- "a) direct the Respondents to release/refund the unlawful payment withheld amount INR 1,08,797/- & INR 25,46,588/- @18% per annum immediately and not to act arbitrarily and support the ongoing Liquidation Proceedings u/s 33(2) of the IBC, 2016 r/w Regulation 32(e) or 32(f) of the IBBI (Liquidation Process) Regulations, 2016. b) award the heavy cost in favour of the Applicant/ Liquidator and against the Respondents for the unlawful attempt to cause prejudice to the rights of the creditor & corporate debtor i.e. hindering the process. c) pass any other order as deem fit and proper to this Hon'ble Tribunal." 2.2. The amounts which were claimed to be refunded were amounts to be paid by the Corporate Debtor in response to proceeding initiated under the Central Excise Act, 1944. The order confirming the demand of Rs.25,46,588/- ....
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....e provision of Section 238 of IBC 2016 is reproduced below:- "238. Provisions of this Code to override other laws. "The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law." 3. Learned Counsel for the Appellant challenging the order contends that the observations of the Adjudicating Authority that provisions of Section 11B of the Central Excise Act, 1944 are inconsistent with Section 33 of the IBC, 2016 and by virtue of Section 238 of the IBC shall stand overridden is not the correct interpretation of the statute. There is no inconsistency in Section 33 of the IBC and Section 11B of the Central Excise Act, 1944. It is submitted that the provisions of Section 11B are mandatory and for every refund, an Application has to be necessarily made as per the statute. No Application made for refund of Rs.25,46,588/- having been filed beyond one year was not maintainable and thus, refund was rightly refused by the statutory authority. With regard to the amount of Rs.1,08,797/-, no Application has ever been made by the Liquidator. It is su....
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....y other person : Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act :] [Provided further that] the limitation of [one year] shall not apply where any duty has been paid under protest. * * * * (2) If, on receipt of any such application, the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund : Provided that the amount of duty of excise as determined by the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (a) rebate of duty of excise on excisable goods exported out o....
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.... any time by notification in the Official Gazette.]" 7. We now notice the provisions of Section 33 as well as Section 238 of the IBC:- "33. Initiation of liquidation. - (1) Where the Adjudicating Authority, - (a) before the expiry of the insolvency resolution process period or the maximum period permitted for completion of the corporate insolvency resolution process under section 12 or the fast track corporate insolvency resolution process under section 56, as the case may be, does not receive a resolution plan under sub-section (6) of section 30; or (b) rejects the resolution plan under section 31 for the non-compliance of the requirements specified therein, it shall - (i) pass an order requiring the corporate debtor to be liquidated in the manner as laid down in this Chapter; (ii) issue a public announcement stating that the corporate debtor is in liquidation; and (iii) require such order to be sent to the authority with which the corporate debtor is registered. (2) Where the resolution professional, at any time during the corporate insolvency resolution process but before confirmation of resolution plan, intimates the Adjudicating Authority of the decision....
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....in force or any instrument having effect by virtue of any such law." 8. Section 33(5) of the IBC on which reliance has been placed by the Learned Counsel for the Liquidator provides that when a liquidation order has been passed, no suit or other legal proceeding shall be instituted by or against the corporate debtor, provided that a suit or other legal proceeding may be instituted by the liquidator, on behalf of the corporate debtor, with the prior approval of the Adjudicating Authority. 9. We do not find any conflict with Section 33 (5) and Section 11B. Section 11B is enabling provision which entitles the Corporate Debtor to make an Application for refund of duty. The Moratorium which becomes operative after liquidation order has been passed is for the purpose for protecting the Corporate Debtor from any legal proceeding. Present is not a case where any legal proceeding has been initiated against the Corporate Debtor under the Central Excise Act, 1944. Present is a case where for refund, to which the Corporate Debtor is entitled, whether the Application is required to be made by the Corporate Debtor in accordance with the Central Excise Act, 1944 or not. The statutory provision ....
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....do not find any provision in Section 11B inconsistent with any provisions of the IBC. We, thus, do not approve the view taken by the Adjudicating Authority that the provisions of Section 11B are inconsistent with Section 33 of the IBC. 13. Now we come to the second question as to whether the Application filed by the Liquidator for refund of the amount of Rs.25,46,588/- was filed beyond time. As noted above, the order entitling refund was passed on 06.11.2019, the period of one year was to be availed till 05.11.2020 whereas the Application which has also been brought on record as Annexure A-2 indicate that Application was filed on 31.12.2020. The submission on which the Learned Counsel for the Respondent has made to support the Application is that by order of the Hon'ble Supreme Court passed in Suo Motu Writ Petition (Civil) No. 03 of 2020 there shall be extension of the limitation. The Hon'ble Supreme Court taking suo motu cognizance of the situation arising out of the challenge faced by the country on account of the COVID-19 has passed an order on 23.03.2020 which is to the following effect:- "This Court has taken Suo Motu cognizance of the situation arising out of the challeng....