TaxTMI 
TaxTMI 
2024 (4) TMI 23
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....e aforesaid order dated 25.04.2023, for a direction upon the Respondents to immediately and forthwith refund the aforesaid pre-deposit amount of Rs. 2,06,31,698 to the Petitioner together with applicable statutory interest; 3. The brief facts of the case are that the petitioner has preferred four appeals before the CESTAT against the aforesaid Orders-in-Original. On 10.03.2015, the petitioner made a pre-deposit of Rs. 1,56,31,698/- in CESTAT. Further, the Petitioner also made a pre-deposit of Rs. 50,00,000/- in CESTAT. In the meantime, a petition against the Petitioner under section 7 of the Insolvency & Bankruptcy Code, 2016 was admitted by the NCLT, Kolkata. The resolution professional issued a specific notice to the Respondent No. 1 to file its claims. The resolution plan of Ghanshyam Mishra & Sons Pvt. Ltd. (GMSPL) was approved by the NCLT, Kolkata. Further, the petitioner applied before NCLT Cuttack, praying for the extinguishment of claims/ demands of Revenue against the Petitioner. NCLT Cuttack allowed the said application and passed an order that the claims of Revenue cannot be entertained and further, the typographical errors in this order were corrected vide order date....
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....ioner and GMSPL filed an interlocutory application being I.A. (IB) 81/2021 before the NCLT Cuttack, to the application filed by GMSPL and OMML before NCLT, Cuttack praying for extinguishment claims/demands of Respondent-Revenue against the Petitioner. The NCLT Cuttack, vide order dated 22.04.2022 allowed the aforesaid application and passed order to the effect that claims of the Respondent-Revenue cannot be entertained. Certain typographical errors in the said order dated 22.04.2022 were corrected vide order dated 11.05.2022. Mr. Sinha further submits that pursuant to the aforesaid order, the petitioner filed Excise Miscellaneous Applications before the CESTAT, Kolkata in the pending appeals. Vide order dated 22.03.2023 passed by the CESTAT, Kolkata, the appeals preferred by the Petitioner against the Orders-in-Original were dismissed as withdrawn. Thereafter, Petitioner has also filed a representation before the Commissioner, CGST & CX, Jamshedpur, seeking a refund of duty paid (pre-deposit amount) for filing appeal U/s 35F of the Central Excise Act, 1944. However, the Respondent No. 2 rejected the refund application made by the Petitioner seeking a refund along with interest o....
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....nd Service Tax Appellate Tribunal, Kolkata ("CESTAT") in the year 2014. In the said appeals, pre-deposits of Rs. 1,56,31,698/- on 10.03.2015 and of Rs. 50,00,000/- on 22.01.2016 were made by the Petitioner. During the pendency of the said appeals, the Petitioner went into insolvency, which finally culminated in approval of the resolution plan of Ghanashyam Mishra & Sons Pvt. Ltd. ("GMSPL") on 22.06.2018 and the Revenue did not lodge its claims against the Petitioner in the resolution process, and hence, upon the approval of the resolution plan, the Revenue's claims against the Petitioner (under the aforementioned three Orders-in-Original) stood extinguished. 7. It further transpires that the Petitioner and the said GMSPL thereafter filed an application before the Ld. NCLT, Cuttack, under section 60(5) read with section 74(3) of the Insolvency and Bankruptcy Code, 2016 read with Rule 11 of the NCLT Rules, 2016 inter alia seeking quashing of the aforementioned three Orders-in-Original and the said application was allowed by the Ld. NCLT, Cuttack, which passed the following order on 22.04.2022 extracted as under: "IA (IB) No. 81/CB/2021 Both sides counsel present.....
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....eriod prior to even initiation of the insolvency proceedings against the Petitioner, did not form part of the approved resolution plan, and hence stood extinguished, and on this score alone, the instant writ petition is fit to be allowed, inasmuch as, it has been held by the Hon'ble Apex Court in the case of Ghanashyam Mishra & Sons Pvt. Ltd. v. Edelweiss Asset Reconstruction Company Ltd. & Ors. reported in (2021) 9 SCC 657] as under: "102. In the result, we answer the questions framed by us as under: 102.1 That once a resolution plan is duly approved by the Adjudicating Authority under sub-section (1) of Section 31, the claims as provided in the resolution plan shall stand frozen and will be binding on the Corporate Debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the Adjudicating Authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan; ....
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....gets extinguished once the new management has taken over the Company as part of the Resolution Plan." It further transpires that the Revenue has not challenged the orders passed by the NCLT and hence the same have attained finality and are binding on the Revenue. 10. Having regards to the aforesaid discussion and the settled proposition of law, we are having no hesitation in holding that the Revenue in the impugned order has completely misdirected itself in law and has completely misconstrued the orders passed by the Ld. NCLT. The purport of the order dated 22.04.2022 passed by the Ld. NCLT which has been relied by the Revenue to reject the claim of the Petitioner that ".....no persons will claim any dues including the statutory dues owed to Central, State Government or any local authority..." is rather applicable qua the claims of the Revenue against the Petitioner, and does not in any manner imply that the pre-deposit made by the Petitioner is not to be refunded; more so, when the very tax liability has stood extinguished. Further, if at all the Revenue retains the pre-deposits made by the Petitioner; the same would amount to unjust enrichment since the very tax liabilit....