TaxTMI 
TaxTMI 
2023 (7) TMI 156
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....ding the Appeal are: (i) M/s Cengres Tiles Limited - the Corporate Debtor has been engaged in the business of manufacturing of non-metallic minerals products including tiles. On 02.02.2018, the Respondent for the purpose of recovering central excise due for an amount of Rs.5,10,12,500/- attached the 81,620 boxes of vitrified tiles. The Panchanma was drawn on 02.02.2018, under which goods were put under 'supurdagi'. (ii) On an Application filed by Axis Bank Limited under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the "Code"), Corporate Insolvency Resolution Process ("CIRP") was initiated against the Corporate Debtor vide order dated 04.03.2021 by the Adjudicating Authority. The Appellant was appointed as the RP in the Meeting of the Committee of Creditors ("CoC") dated 23.05.2022. (iii) The Respondent had submitted its claim to the erstwhile Interim Resolution Professional ("IRP") under Form B of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016) claiming a sum of Rs.39,62,94,872/-, which also included the amount of Rs.5,10,12,500/- for recovering which excise duty, tiles were attached. (iv) The RP issued ....
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....f the assets of the Corporate Debtor, for which the Application was filed. The Financial Creditors have priority over the attached goods and the crown debts, rank below the secured creditors by virtue of Section 238 of the Code, Section 11E of the Central Excise Act, 1944 shall be overridden. 5. Learned Standing Counsel appearing for the Respondent, refuting the submission of learned Counsel for the Appellant submits that tiles were attached much before initiation of CIRP and the Respondent has first charge over the attached assets. It is submitted that Respondent has auctioned the goods, but the auction purchaser could not take possession of the goods and the Department has to refund the amount with interest to the auction purchaser due to objections raised by the State Bank of India and orders passed by the Debt Recovery Tribunal and High Court. The Respondent is a secured creditor and revised claim for an amount of Rs.39,86,04,041/- in Form-C was filed in the light of the judgment of the Hon'ble Supreme Court in State Tax Officer vs. Rainbow Paper Limited, Civil Appeal No.1661/2020, which has been rejected by the RP, against which the Application has already been filed by the R....
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....021) SCC OnLine NCLAT 4790. In the above case, an Appeal was filed by the Assistant Commissioner Central Goods and Service Tax, challenging the order passed by the Adjudicating Authority, by which order the Application filed by Appellant before the Adjudicating Authority seeking permission to auction the seized goods was rejected. In the above case also attachment was made on 31.01.2018, i.e. before initiation of CIRP, which started on 15.01.2019. Dismissing the Appeal in paragraph 5 to 8, this Tribunal held following: "5. The order dated 15.01.2019 passed by the Adjudicating Authority which is part of the Appeal clearly indicates that 'Moratorium' was declared by the Adjudicating Authority by para 14 of the order. 6. The Adjudicating Authority did not commit any error in not allowing I.A. 463 of 2019 in view of pendency of CIRP. We may refer to the judgment of the Hon'ble Supreme Court in "Anand Rao Korada, Resolution Professional v. Varsha Fabrics Private Limited, (2020) 14 SCC 198". 7. In the above case, Financial Creditor has filed an Application under Section 7 of the 'I&B Code' which was admitted on 04.06.2019 and Moratorium was declared. During the pendency of Mora....
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....as laid down in paragraph 38 of the judgment: "38. It was argued by all the learned Senior Counsel on the side of the appellants that an Interim Resolution Professional is duty-bound under Section 20(1) to preserve the value of the property of the corporate debtor and that the word "property" is interpreted in Section 3(27) to include even actionable claims as well as every description of interest, present or future or vested or contingent interest arising out of or incidental to property and that therefore the Interim Resolution Professional is entitled to move the NCLT for appropriate orders, on the basis that lease is a property right and NCLT has jurisdiction under Section 60(5) to entertain any claim by the corporate debtor." 13. The Hon'ble Supreme Court while considering the jurisdiction of NCLT in Section 60, sub-section (5), sub-clause (c), laid down following: "37. .....But a decision taken by the Government or a statutory authority in relation to a matter which is in the realm of public law, cannot, by any stretch of imagination, be brought within the fold of the phrase "arising out of or in relation to the insolvency resolution" appearing in clause (c) of sub-secti....
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....he learned Counsel for the Appellant has also referred to and relied on Circulars issued by Central Board of Excise and Customs dated 10.03.2017 and clarification issued by Central Board of Indirect Taxes and Customs dated 23.03.2020. In Circular dated 10.03.2017 in paragraph 20.1, following was stated: "20.1 Recovery during pendency before BIFR/IFCL/OL/DRT/Insolvency and Bankruptcy Code, 2016: When the cases are pending before BIFR/IFCL/OL/ appropriate authority under Insolvency and Bankruptcy Code, 2016 then in such cases recovery measures should not be resorted. In such cases public counsel should be advised to file affidavits for first charge under Section 11E of Central Excise Act, 1944 informing the quantum of confirmed demand to BIFR/IFCL/OL/DRT/Insolvency and Bankruptcy Code Authorities." 16. Further, the Circular dated 23.03.2020 by which Central Board of Indirect Taxes and Customs has issued certain clarification in respect of issues under GST law for companies under Insolvency and Bankruptcy Code, 2016. Clarification Item No.1 is relevant, which his to the following effect: Sl. No. Issue Clarification 1. How are dues under GST for pre-CIRP period be dealt? In ac....