TaxTMI 
TaxTMI 
2023 (8) TMI 193
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....ards default in payment of Central Excise Duty, interest and penalty as per Central Excise Returns filed with the Appellant Department. As per the Resolution Plan, only 0.13% has been earmarked towards Government dues, and the Financial Creditor is getting 44.5% of the Claim amounts and the other Operational Creditors are getting 0.51% of their Claim amounts, which is stated to be unfair. 3. It is vehemently argued by the Learned Counsel for the Appellant that in view of the attachment on the Property of the Corporate Debtor, the Appellant could fall within the definition of 'Secured Creditor'. The Plan also notes that the total sum for the purpose of Resolution Plan is Rs. 4,73,42,602/- and that in the event the Application of the Appellant is rejected under SABHKA VISWA SCHEME, the total Claim would be Rs. 22,60,32,948/- . It is contended that the Corporate Debtor had filed under the said Scheme and had agreed to pay an amount of Rs. 4,73,42,602/- during the CIRP Period and on account of non-payment, the total sum due to the Appellant, today is Rs. 22,60,32,948/-. The Learned Counsel for the Appellant placed reliance on the letter issued by the Successful Resolution Applicant on....
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....isions of the IBC, in particular, Section 53 thereof, overrides Section 48 of the GVAT Act, 2003 and it was held by the Hon'ble Apex Court that Section 48 of the 'Gujarat Value Added Tax Act, 2003' (GVAT Act, 2003) is not contrary or inconsistent with Section 53 or any other provisions of IBC. It was observed that under Section 53 (1) (b) (ii), the debts owed to a Secured Creditor, which would include the State, under the 'GVAT Act, 2003', are to rank equally with other specified debts including debts on account of workman's dues for a period of 24 months preceding the Liquidation Commencement date and hence it was held in that case that the State, is a Secured Creditor under 'GVAT Act, 2003'. In this instant case, the Demand orders were issued to the Corporate Debtor under the 'Central Excise Act, 1944'. Section 11E of the 'Central Excise Act, 1944' is distinct from the provisions of 'GVAT Act, 2003'. For better understanding of the case, the said Section 11E of the Central Excise Act, 1944 is reproduced as hereunder: "11E Liability under Act to be first charge-Notwithstanding anything to the Contrary contained in any Central Act or State Act, any amount of duty, penalty, intere....
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....n, this 'Tribunal' is of the considered view that the Appellant herein, cannot be treated as a 'Secured Creditor'. 10. The Hon'ble Supreme Court in a Catena of Judgments in the matter of 'Kalparaj Dharamshi & Anr. v. Kotak Investment Advisors Ltd. & Anr.' reported in 2021 (10 SCC 401) has observed that the Commercial Wisdom of the CoC is non-justiciable, unless it is not in accordance with Section 30(2) of the Code. The relevant Paras in the matter of 'Kalparaj Dharamshi & Anr. v. Kotak Investment Advisors Ltd. & Anr.' (Supra) are detailed as hereunder: "164. It will be further relevant to refer to the following observations of this Court in K. Sashidhar [K. Sashidhar v. Indian Overseas Bank, (2019) 12 SCC 150 : (2019) 4 SCC (Civ) 222] : (SCC pp. 186-87, para 57) 57. ... Indubitably, the remedy of appeal including the width of jurisdiction of the appellate authority and the grounds of appeal, is a creature of statute. The provisions investing jurisdiction and authority in NCLT or Nclat as noticed earlier, have not made the commercial decision exercised by CoC of not approving the resolution plan or rejecting the same, justiciable. This position is reinforced from the limited ....
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..... Thus, it is clear that the limited judicial review available, which can in no circumstance trespass upon a business decision of the majority of the Committee of Creditors, has to be within the four corners of Section 30(2) of the Code, insofar as the adjudicating authority is concerned, and Section 32 read with Section 61(3) of the Code, insofar as the Appellate Tribunal is concerned, the parameters of such review having been clearly laid down in K. Sashidhar [K. Sashidhar v. Indian Overseas Bank, (2019) 12 SCC 150 : (2019) 4 SCC (Civ) 222] ." 168. It can thus be seen, that this Court has clarified, that the limited judicial review, which is available, can in no circumstance trespass upon a business decision arrived at by the majority of CoC. 169. In Maharashtra Seamless Ltd. [Maharashtra Seamless Ltd. v. Padmanabhan Venkatesh, (2020) 11 SCC 467 : (2021) 1 SCC (Civ) 799] , NCLT had approved [V. Venkatachalam v. Indian Bank, 2019 SCC OnLine NCLT 713] the plan of the appellant therein with regard to CIRP of United Seamless Tubulaar (P) Ltd. In appeal, Nclat directed [Padmanabhan Venkatesh v. V. Venkatachalam, 2019 SCC OnLine NCLAT 285] , that the appellant therein should incr....