2023 (3) TMI 333

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.... CM APPL. 10366/2023 in W.P.(C) 2684/2023 1. Exemption allowed, subject to all just exceptions. 2. Applications stand disposed of. W.P.(C) 2647/2023 & CM APPL. 10200/2023 W.P.(C) 2684/2023 & CM APPL. 10365/2023 3. Issue notice. The learned counsel for the respondent accepts notice. 4. The petitioner has filed the present petitions impugning two separate orders-in-original, both dated 26.05.2022. In terms of the impugned orders, the Adjudicating Authority has assessed a sum of Rs.63.35 crores as service tax and Rs.8.95 crores as CENVAT Credit, for the years 2014-2015 and a sum of Rs.92.11 crores as service tax and Rs.4.05 crores as CENVAT Credit for the years 2015-2016, 2016-2017 and the first quarter of assessment year ....

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....att, Liquidator of ABG Shipyard vs. Central Board of Indirect Taxes and Customs: (2023) 1 SCC 472. 10. We find merit in the contention advanced by Ms Tiwari that pendency of CIRP confers no impediment in framing the assessment. But no recovery proceedings can be initiated for recovery of the liability assessed. This is clear from the following extract from the decision in Sundaresh Bhatt, Liquidator of ABG Shipyard vs. Central Board of Indirect Taxes and Customs (supra) : "47. Therefore, this Court in V.M. Deshpande case [S.V. Kandoakar v. V.M. Deshpande, (1972) 1 SCC 438] held that the authorities can only take steps to determine the tax, interest, fines or any penalty which is due. However, the authority cannot enforce a claim....

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....e Customs Act and IBC can be read in a harmonious manner wherein the authorities under the Customs Act have a limited jurisdiction to determine the quantum of operational debt - in this case, the customs duty - in order to stake claim in terms of Section 53 of the IBC before the liquidator. However, the respondent does not have the power to execute its claim beyond the ambit of Section 53 of the IBC. Such harmonious construction would be in line with the ruling in Gujarat Urja Vikas Nigam Ltd. v. Amit Gupta [Gujarat Urja Vikas Nigam Ltd. v. Amit Gupta, (2021) 7 SCC 209 : (2021) 4 SCC (Civ) 1] , wherein a balance was struck by this Court between the jurisdiction of NCLT under the IBC and the potential encroachment on the legitimate jurisdict....