TaxTMI 
TaxTMI 
2023 (8) TMI 1139
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....ery of part of the Cenvat Credit by reversing the same on the ground that the petitioner no. 1 was not entitled to the same. The orders under challenge and the period for which the said orders pertain are indicated as under :- DATE ORDER NUMBER PERIOD 31.07.2020 Order 372/CEX/2020/C/NGP-I 25.08.2011 TO 31.03.2015 31.12.2020 Order 20/CE/JC/NGP-II/2020 July-2012 to June-2013 31.12.2020 Order 19/CE/JC/NGP-II/2020 July-2013 to December-2013 31.12.2020 Order 18/CE/JC/NGP-II/2020 January-2014 TO September-2014 3. The principal ground of challenge as raised by the petitioners is that the aforesaid adjudication has been undertaken without such claims being lodged in the insolvency proceedings under the Insolvency and Bankruptcy Code, 2016 (for short, 'the I & B Code') that were pending against the petitioner no. 1. The facts relevant in that regard are that the petitioner no. 1 is a Company incorporated under the Companies Act, 1956 (for short, 'the Act of 1956') and is in the business of cement. The petitioner no. 2 which is under the management of the petitioner no. 1 was subjected to proceedings under the I & B Code before the National Company Law Tribunal, Mumbai (for s....
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....thorized Signatory Versus Edelweiss Asset Reconstruction Company Limited, Through The Director & Others [(2021) 9 SCC 657], it was submitted that the claims that were not part of the Resolution Plan were not liable to be accepted nor could the amounts not claimed be recovered. Since the Resolution Plan had attained finality, no recovery under the impugned orders could be directed. It was submitted that in the light of its legal bar the impugned orders were unsustainable and were liable to be set aside. Though the petitioners had by communication dated 17.03.2021 requested the respondent no. 2 to recall such orders, no steps in that regard were taken. It was submitted that in the light of the clear legal and jurisdictional bar this Court could intervene under Article 226 of the Constitution of India and consider the challenge. On the aspect of non-availing of the alternate remedy under the Statute it was submitted that this issue had also been considered in Ghanashyam Mishra And Sons (supra) and it was observed that in such facts no useful purpose would be served by driving a party to avail the statutory remedy. Since the impugned orders proceeded to reverse the input credit and fu....
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....ed to the impugned orders to indicate the aforesaid aspect and the finding as recorded in the order dated 31.07.2020 in that regard. It was therefore submitted that since the petitioners were not entitled to seek benefit of the law as laid down by the Hon'ble Supreme Court in Ghanashyam Mishra And Sons (supra) this was another reason for directing the petitioners to avail the statutory remedy by filing an appeal. In that context, the learned counsel referred to the decisions in Assistant Commissioner (CT) LTU, Kakinada & Others Versus Glaxo Smith Kline Consumer Health Care Limited [AIR 2020 SC 2819], TVS Motor Company Limited Versus State of Tamil Nadu & Others [(2019) 13 SCC 403], ALD Automotive Private Limited Versus Commercial Tax Officer Now Upgraded as Assistant Commissioner (CT) & Others [(2019) 13 SCC 225] and the judgment of the Division Bench in Gopal Tukaram Bitode Versus Income Tax Officer, Ward-1, Akola & others [Writ Petition No. 4141 of 2022 alongwith connected writ petitions]. It was thus submitted that since in the present proceedings the reversal of input tax credit that was already availed and the same was not a case of recovery, the writ petition was liable to be....
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....in the impugned orders it cannot be said that the said orders merely determined the liability of the petitioners to claim Cenvat Credit. The order being composite in nature of firstly denying Cenvat Credit partly and thereafter directing recovery of such amount to which the petitioners have not been found entitled, it cannot be said that the orders merely determined the liability and hence could not be called proceedings for recovery. Considering the directions issued in the impugned orders which includes a direction to recover the requisite amounts under Section 11A of the Act of 1944, it is clear that the impugned orders infact would be orders of recovery. The ratio of the decisions in ALD Automotive (P) Ltd. and TVS Motor Company Limited (supra) is that input credit is in the nature of benefit/concession extended. The said ratio however cannot be applied in the present facts since the impugned orders also direct recovery to be made. The contention raised by the learned counsel for the respondents that the impugned orders merely determine liability and are not orders of recovery therefore cannot be accepted. 7. Once it is found that the impugned orders direct recovery of the amo....
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....nued." Thus from the aforesaid it is clear that all the dues including the statutory dues owed to the Central Government if not part of the Resolution Plan would stand extinguished and no proceedings in respect of such dues for the period prior to the date of approval being granted by the NCLT could be continued. 8. In the present case from the list of claimants that were Statutory Authorities, it can be seen that the Central Excise, Customs and Service Tax Department Division, Kamptee, Telankhedi Road, Civil Lines, Nagpur is shown to be one of the claimants but the claim with regard to the present proceedings does not find mention therein. There is no reference to the aforesaid claims in the details as contained in the impugned orders. It may be mentioned that Company Appeal (Insolvency) No. 892-892 was preferred by the Deputy Commissioner, CGST and Central Excise Division, Chandrapur as Operational Creditor with regard to dues of the Corporate Debtor under the Act of 1944. The claim was however not accepted as it was not in accordance with the CIRP Regulations. This fact was not seriously traversed by the respondents but it was urged that since the proceedings pertain to wron....
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....ion between 15.03.2020 and 28.02.2022. If the aforesaid periods are excluded from consideration, it becomes clear that during the relevant period the limitation for preferring such appeal stood extended. The present writ petition has been filed on 03.05.2021. It is thus clear that by such time the statutory appeal could have been preferred by the petitioners. Taking benefit of the decision of the Hon'ble Supreme Court referred to hereinabove, the writ petition has been filed prior to expiry of the extended period of limitation. 11. Another relevant aspect that distinguishes the present case is that the challenge to the orders passed by the Joint Commissioner is not on merits but is based on jurisdictional aspects inasmuch as the amounts sought to be recovered under Section 11A of the Act of 1944 were not part of the Resolution proceedings undertaken by the NCLT and thereafter by the NCLAT. It is thus not necessary to examine the correctness of the impugned orders on merits and the only aspect to be considered is effect of the judgment of the Hon'ble Supreme Court in Ghanashyam Mishra And Sons (supra) on the ground that the respondents did not raise any claim before the Resolution ....