2022 (8) TMI 1459

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....stions of law : "(i) Whether in the facts and circumstances of the case, the CESTAT was correct in extending the benefit of concessional rate of duty exemption under sr. No. 34 of Notification No. 21/2002-Cus dated 1.03.2002 as amended? (ii) Whether in the facts and circumstances of the case, the CESTAT was correct in ignoring the report of the Government institution, in absence of the same being demonstrated to be erroneous, relying only on a private report? (iii) Whether in the facts and circumstances of the case, the CESTAT was correct in holding that carotene value in crude palm oil decreases due to passage of time relying upon the test report which nowhere provides that carotene value in crude palm oil decreases with passage of time?" 4. At the outset learned advocate Mr. Rajesh Raval with learned advocate Mr. Dipen Desai appearing for the respondent relying upon the averments made in additional affidavit submitted that M/s. Ruchi Soya Industries Limited was subjected to insolvency proceedings before the National Company Law Tribunal (For short "NCLT") under the provisions of Insolvency and Bankruptcy Code, 2016 (here-in-after referred to as "IBC"....

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....lan has been approved by the NCLT under section 31 of the IBC. 4.5) It was submitted that the present proceedings and subject demand against the respondent relates to import made by the respondent in the year 2004 and hence the liability, if any, in respect of such proceedings pertains to the period prior to the commencement of the corporate insolvency resolution process and therefore, the same would stand extinguished. 4.6) Reliance was placed on the decision of Apex Court in case of Committee of Creditors of Essar Steel India Limited v. Satish Kumar Gupta & Ors. reported in (2020) 8 SCC 531, wherein it is held that all claims must be submitted to and decided by the Resolution Professional so that a prospective Resolution Applicant knows exactly what has to be paid in order that it may then take over and run the business of the corporate debtor. 4.7) Learned advocate Mr. Raval also referred to and relied upon the decision of Rajasthan High Court in case of Ultra Tech Nathdwara Cement Ltd. (formerly known as Binani Cements Ltd.) v. Union of India and others reported in 2020 SCC OnLine Raj 1097 reiterating the same principle that as per the amended section 31 of the IBC, th....

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....nue in the capacity of Operational Creditor before the Resolution Professional within the specified time limit till finalisation and approval of the Resolution Plan. 5.3) It was submitted that the substantial question involved in appeal pertains to demand of duty for the year 2004 onwards which is prior to initiation of IRP process. 5.4) It was fairly submitted by learned advocate Mr. Vyas relying upon the para-wise comments received by him from the appellant that in view of order dated 17.02.2022 of the Apex Court in I.A. No. 85939/2021 in Civil Appeal No. 447-448 of 2013 and the provisions of sections 32A and 31 of the IBC, Tax Appeal may be decided on merits. 6. In view of the above submissions, it is not in dispute that the appellant Commissioner of Customs has not lodged any claim before the Resolution Professional within specified time limit as per the provisions of IBC and the Resolution Plan is approved by NCLT in the year 2019. The issues involved in this appeal pertains to demand for period prior to the approval of the Resolution Plan by the NCLT. 7. The Apex Court in case of respondent in Civil Appeal No. 447-448 of 2013, after recording the facts h....

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.... authority has, on the basis of material in its possession, reason to believe that he had abetted or conspired for the commission of the offence, and has submitted or filed a report or a complaint to the relevant statutory authority or Court: Provided that if a prosecution had been instituted during the corporate insolvency resolution process against such corporate debtor, it shall stand discharged from the date of approval of the resolution plan 'subject to requirements of this sub-section having fulfilled." 11. In view of above provisions which clarifies that upon completion of corporate insolvency resolution process, even liability of corporate debtor for an offence committed earlier would cease and hence the appellant department cannot proceed further with the present appeal in absence of any claim lodged with the Resolution Professional during the insolvency resolution process before the NCLT. 12. Section 31 of the IBC is also amended with effect from 16.08.2019 and reads as under: "1) If the Adjudicating Authority is satisfied that the resolution plan as approved by the committee of creditors under sub-section (4) of section 30 meets the requiremen....