TaxTMI 
TaxTMI 
2024 (4) TMI 1211
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Duty/credit involved (in Rs.) 1. E/252/2011 OIO No. CCE/BBSR-I/16-20/2011 dtd.31.01.2011 140,46,88,065/- 2. E/281/2011 OIO No. CCE/BBSR-I/21/2011 dtd.04.02.2011 15,46,214/- 3. E/704/2011 OIO No. CCE/BBSR-I/03/2011 dtd.28.04.2011 2,74,86,476/- 4. E/652/2012 OIO No. CCE/BBSRI/05/2012 dtd.15.05.2012 2,09,40,479/- 5. E/653/2012 (Dept. appeal) 2,69,50,581/-* (credit allowed) 2. All the appeals essentially concern availment of CENVAT Credit on inputs / capital goods. Cases wherein CENVAT Credit is denied, the appeals have been field by the appellant/company and where CENVAT Credit is allowed, cross-appeal has been filed by the Revenue. At the time of hearing of the stay petitions, the Tribunal was pleased to waive off the penalties levied on the appellant by way of the aforesaid Orders-in-Original in view of the fact and as contended that they had reversed the CENVAT Credit concerned in the said appeals. 2.1 The aforesaid facts are however mentioned only by way of reference for presenting a preliminary aspect of the issue. However, it be noted that subsequent to the filing of the appeals and the various applications filed ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Plot No. 1 & 2, Ishwar Nagar Mathura Road, New Delhi - 110 065" and currently stands as follows: - "M/s. Tata Steel Limited Regd. Office: Bombay House, 24-Homi Mody Street, Fort, Mumbai, Maharashtra - 400 001" 3.3 The appellant-company underwent CIRP in terms of the Code which culminated into approval of the Resolution Plan submitted by M/s. Tata Steel Limited by the adjudicating authority of the NCLT, Principal Bench, New Delhi [ref. NCLT Order dated May 15, 2018] 4. In view of the aforesaid facts and settled case-laws on the subject, the present appeals undoubtedly get abated in terms of Rule 22 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 [The Rules], as no application for continuance of the said proceedings were tendered by the present owners. 4.1 The relevant clauses 8.2.1 and 8.2.2 of the Resolution Plan on record indicates the liquidation value for the operational creditors, which includes tax dues, as 'NIL' and clearly states that no amounts are to be paid to the operational creditors (refer to clause 8.2.1 and clause 8.2.2 of the Resolution Plan). Likewise, in terms of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....x Appeal No. 536 of 2010 v. Orchid Chemicals & Pharma v. The Commissioner of GST & Central Excise, CESTAT, Chennai, Service Tax Appeal No. 42474 of 2014] however, the same is not the correct position of law as the said decisions were pronounced per incuriam. 8.1 The Ld. Senior Advocate further submitted that in view of their proposition that the aforesaid decisions were rendered per incuriam, the impugned issue would need a consideration by the Larger Bench of the Tribunal for the following reasons: - (a) Refund of pre-deposit sought by them is a 'security deposit' and cannot be construed as tax or duty and drew strength from the following case-laws in support: i. Commr. of Customs (Import) v. Finacord Chemicals (P) Ltd., (2015) 15 SCC 697 ii. Union of India v. Suvidhe Ltd., (2016) 11 SCC 808 iii. Nelco Limited v. Union of India, 2001 SCC OnLine Bom 1251 iv. Goldy Engg. Works v. CCE, (2023) 3 HCC (Del) 781 (b) While admitting that the appeals would no longer survive, the appellant contends that the amount deposited by way of pre-deposit is required to be returned to them as there is no authority in law for the Dep....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y; a liquidator then takes over and disposes of the assets in accordance with the provisions of Chapter III of the Code. 8.2 They thus vehemently submit that in the present case, liquidation process had not been resorted to and it is not a case of winding up of the existing company and therefore, Rule 22 of the Rules has no application in the present matter and placed reliance in support of their stance on the proposition of law as laid down in the case of Ultratech Nathdwara Cement Ltd. v. Commissioner of Cus., Jamnagar (Prev.) [FO No. A/11268/2022 dated 20.10.2011 in C/45/2012 - CESTAT, Ahmd.] . 9. The Ld. Authorized Representative Shri S.S. Chattopadhyay, assisted by the Ld. Authorized Representative Shri S. Mukhopadhyay, however, strongly contests passing of any direction from the Tribunal on the aspect of refund of pre-deposit and submits that it is the settled law under the given circumstances, that the appeal stands abated and the Tribunal would thus not be in a position to give any directions in the matter, having become functus officio. 10. We have heard the two sides and carefully considered the extensive pleadings and arguments made before us. 11. The only qu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....vocate between 'liquidation' and 'winding up' has any bearing to the effect of abatement of the present appeals and whether in each of the two scenarios, the appeals need to be treated distinctly or would simply abate as stated under Rule 22 of The Rules. 13. Black's Law Dictionary (Seventh Edition) defines "abatement" as under: - "abatement (ə-bayt-mənt), n. 1. The act of eliminating or nullifying <abatement of a nuisance> <abatement of a writ>. 2. The suspension or defeat of a pending action for a reason unrelated to the merits of the claim <the defendant sought abatement of the suit because of misnomer>. See plea in abatement under PLEA. "Although the term 'abatement' is sometimes used loosely as a substitute for 'stay of proceedings, the two may be distinguished on several grounds. For example, when grounds for abatement of an action exist, the abatement of the action is a matter of right, but a stay is granted in the court's discretion. And in proper circumstances a court may stay a proceeding pending the outcome of another proceeding although a strict plea in abatement could not be sustained." 1 Am. Jur. 2d Abatement, Su....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Once the Resolution Plan succeeds and is approved in terms of Section 31 of the Code (reproduced below): "31. (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 requirements as referred to in sub-section (2) of section 30, it shall by order approve the resolution plan which shall be binding on the corporate debtor and its employees, members, creditors, guarantors and other stakeholders involved in the resolution plan. (2) Where the Adjudicating Authority is satisfied that the resolution plan does not confirm to the requirements referred to in sub-section (1), it may, by an order, reject the resolution plan. (3) After the order of approval under sub-section (1),- (a) the moratorium order passed by the Adjudicating Authority under section 14 shall cease to have effect; and (b) the resolution professional shall forward all records relating to the conduct of the corporate insolvency resolution process and the resolution plan to the Board to be recorded on its database." the effect of this is its binding nature and the vacation of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n entity), esp. in bankruptcy or dissolution. 4. To convert (a nonliquid asset) into cash. 5. To liquidate something, such as a debt or corporation. 6. Slang. To get rid of (a person), esp. by killing" "winding up, n. The process of settling accounts and liquidating assets in anticipation of a partnership's or a corporation's dissolution. Cf. DISSOLUTION (3). wind up, vb. wind up, n." 14.1 As is clear from the aforesaid expressions, 'winding up' is the process of settling of accounts and liquidating assets in anticipation of the dissolution of a corporation whereas 'liquidation' can be construed as the process of ascertaining the liabilities and distribution of the assets particularly in bankruptcy or dissolution. In other words, liquidation is largely a process of winding up. 15. Justice R.P. Sethi's treatise, Supreme Court on Words & Phrases (1950-2021) (Third Edition) further refers to abatement, as under: - "Abate. "Abating" means an extinguishments of the very right of action itself. The right of prosecution is effectually wiped out. To "abate", as applied to an action, is to cease, terminate, or come to an end prematurely. P.K. Mitra v. State o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....4; Re Havana, etc. Co [1916] 1 Ch.8. (c) Subject to supervision of the court: see hereon Companies Act 1985 (c.6), ss.606-610. As to the construction of surplus assets clause, in a winding-up; see Birch v Cropper 14 App. Cas. 525; Ex p. Maude 6 Ch. 51; Re Anglo-Continental Co [1898] 1 Ch. 327; Re New Transvaal Co [1896] 2 Ch. 751, cited SURPLUS. See Re Ramel Syndicate [1911] 1 Ch. 749. "Winding-up" (s.32(4), Building Societies Act 1874 (c.42)) meant winding-up under the Companies Acts 1862, 1867 (Re Sunderland Building Society 21 Q.B.D. 349) or the Companies Winding-up Act 1890 (Building Societies Act 1894 (c.47), 5.8). A winding-up may be ordered against a building society whose registry has been cancelled under s.6 of the Building Societies Act 1894 (c.47) (Re Grosvenor House Property Acquisition, etc. Society 71 L.J. Ch. 748). See further Re Ilfracombe Building Society 70 L.J. Ch. 72, cited FORMED. So, in a bank charter, though granted before the Companies Act 1862, "winding-up the affairs of the corporation" included a winding-up under the statutory powers for the time being in force, i.e. under the Companies Act, 1862, and the Acts ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....17.2 Thus what has essentially transpired in the present appeals is the closure of business operations of the erstwhile appellant viz. BSL and its acquisition and to accord it a fresh lease of life as per the terms of the Resolution Plan (including warding off all accrued debts and liabilities of the erstwhile organization) under a whiff of fresh air under a new corporate entity (M/s. Tata Steel Limited, in the present case). 18. It may be pertinent to note that the heading under Chapter II of the Code, whereby the said Resolution Plan has been approved by the NCLT/NCLAT, seeks to state the "Corporate Insolvency Resolution Process" under Part II of the Code, which reads as:- "PART II INSOLVENCY RESOLUTION AND LIQUIDATION FOR CORPORATE PERSONS" 19. While the terms 'liquidation' and 'winding up' may not be defined under the Code, however, in view of what is stated supra, the natural meanings have to be assigned to the said terms, in the context so used in Rule 22 of The Rules and from the readings of the definition under Section 5(18) of the Code pertaining to "liquidator". What is clear therefrom is that the term 'liquidation' can safely be construed to be as is used in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dded Tax Act, 2003, did nowhere examine the scope and reach of Rule 41 of the Rules. The Hon'ble High Court was concerned with several issues therein like refund of amount deposited by way of pre-deposit once the Tribunal allowed the appeals and decided the same in favour of the depositor of the said money. We are afraid the situation in the present matters is not akin to either of the two cases, hence the ratio of the said laws is not blindly adoptable. In the present case as the appeals simply get abated, the Tribunal does not have an opportunity to examine the merits of the case, least of all arbitrate and render a ruling on the subject issues. Likewise, there is also no question of any ex-parte ruling having been rendered in the matter. 20.1 Amongst others, the Ld. Senior Advocate referred to the decision in the case of State of Gujarat v. Essar Steel Ltd. (supra) for the proposition that the powers vested in the Tribunal under Rule 41 of the Rules were of a wide amplitude and by necessary implication, Tribunal is vested with all powers and duties incidental and necessary to make the exercise of those powers fully effective. However, in the said case, the relevant question w....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... LJ 89. Under ss. 51, 78 of the Probate and Ad- ministration Act a Court does not become functus officio immediately a surety is accepted. In case the court discharges the surety before the administration is over, it can call for a fresh surety. Raj Narain v Fulkumari, 6 Cal WN 7; 29 Cal 68. Where a receiver is appointed pending an appeal, he does not become functus officio, i.e., his office does not come to an end as soon as the appeal is decided and remanded, but continues till he is finally discharged. Grey v Woogra Mohun, 28 Cal 790. Where a judge has made an order for a stay of execution which has been passed and entered, he is functus officio, and neither the nor any other judge of equal jurisdiction has jurisdiction to vary the terms of such stay. R. v GM. Holdings Ltd., (1941) 3 All ER 417. An arbitrator or umpire who has made his award is functus officio, and cannot in common law alter it in any way whatsoever. See Mordue v Palmer 6 Ch App. 22. Brooke v Mitchell, 6 NC 349, The High Court has no power to issue a writ of certiorari for quashing the order of a Tribunal which has become extinct and the record of the proceedings, in which the impugned....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ne to a person or to the society, it cannot be un- done after the dispute between the parties has ended otherwise than on merits. By pleading that the court had become functus officio, no one can over-reach the court. Union of India v Sahkari Khand Udyog Mandli Ltd., AIR 1981 Guj 102. Once decree is made, the learned Judge be- comes functus officio. The dictionary meanings of functus officio are as under: As per Black's Law Dictionary, 2009, 9th Edition, p. No. 743: "Having performed his/office, an officer or official body without further authority or legal competence because the duties and functions of the original commission have been fully accomplished." As per Wharton's Law Lexicon, 1953, 14th Edition, p. No. 441: "A person who has discharged his duty, or whose office or authority is at an end." As per Stroud's Judicial Dictionary, 1986, 5th edn., Vol. 2, p. No. 1064: "Where a Judge has made an order for a stay of execution which has been passed and entered, he is functus officio and neither he nor any other Judge of equal jurisdiction has jurisdiction to vary the terms of such stay. (Re: V.G.M. Holdings....
X X X X Extracts X X X X
X X X X Extracts X X X X
....unced by dictation in an open Court to a shorthand writer [if the Judge is specially empowered (sic by the High Court) in this be-half]. The proviso thereto provides that where the judgment is pronounced by dictation in open Court, the transcript of the judgment so pronounced shall, after making such corrections as may be necessary, be signed by the Judge, bear the date on which it was pronounced and form a part of the record. Rule 3 provides that the judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it and when once signed, shall not afterwards be altered or added to save as provided by Section 152 or on review. Thus, where a judgment is reserved, mere dictation does not amount to pronouncement, but where the judgment is dictated in open Court, that itself amounts to pronouncement. But even after such pronouncement by open Court dictation, the Judge can make corrections before signing and dating the judgment. Therefore, a Judge becomes functus officio when he pronounces, signs and dates the judgment (subject to Section 152 and power of review). The position is different with reference to quasi-judicial authorities. While some quasi-judicial T....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t Forum by invoking its jurisdiction under Section 27 of the Consumer Protection Act, 1986 and the same had attained finality. Neither has any new order been passed, nor could any order have been passed under Section 72(1) of the Act, 2019 or under Section 27 of the Act, 1986, as the case may be. The District Forum having rightly held that it has become 'functus officio', has dismissed the application moved by the respondent No.4/Developer filed under section 151 CPC, as being not maintainable. Thus, the purported appeal preferred by the respondent No.4/ Developer against the said order before the State Commission was held to be not maintainable since the State Commission lacked the inherent jurisdiction to entertain the same. V.V.L. Sujatha v State of Telangana, 2021 (4) ALT 51: 2021 (4) Andh LD 280 (Tel) (DB)." (Emphasis supplied) 21.1 Thus, it implies the cessation of the authority to act upon having discharged a duty, statutory function or the like. As pointed out in the aforesaid commentary, no sooner an award is made and filed in court, the powers of arbitration come to an end i.e., the authority pronouncing the order become functus officio. Thus, accordingly, t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....has been filed by the successor interest for the continuance of the proceedings ..." 26.2 The Tribunal in the said case thus held that as no such application having been filed by the successor-in-interest, the impugned appeal gets abated. It further referred to the decision of the Hon'ble Apex Court in the case of Committee of Creditors of Essar Steel Ltd. v. Satish Kumar Gupta & ors. [(2020) 8 SCC 531 (S.C.)] wherein the Hon'ble Apex Court had held as follows: "103. .......................It is made clear that the CIRP of the corporate debtor in this case will take place in accordance with the resolution plan of Arcelor Mittal dated 23.10.2018, as amended and accepted by the Committee of Creditors on 27.03.2019, as it has provided for amounts to be paid to different classes of creditors by following Section 30(2) and Regulation 38 of the Code." 26.3 Furthermore, it also referred to paragraph 102 of the decision of the Hon'ble Apex Court in the case of Ghanashyam Mishra & Sons Pvt. Ltd. v. Edelweiss Asset Reconstruction Company [(2021) 9 SCC 657 (S.C.)] wherein, the Hon'ble Supreme Court held as under: "102. In the result, we answer the questions framed by u....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Insolvency and bankruptcy Code, 2016 needs to be formulated. Further, GST and Customs Authorities have been classified as operational creditors and are required to submit their claims against corporate debtors when the Corporate insolvency and resolution process is initiated and public announcement inviting claims is made by the insolvency professional. 2. A timeline of 90 days from the insolvency commencement date is available for filing of claims. However, it has been observed that there is an inordinate delay in filing of claims by Customs and GST authorities. This leads to their claims not being admitted and extinguished once a resolution plan is approved. It is also observed that the authorities then litigate on the rejection of each claims, despite the settled position that no claims can be raised once the plan is approved and no demands can be raised on the Resolution Application who has taken over the company through such a resolution plan." (Emphasis supplied) 26.5 On the specific question of claim of refund of pre-deposit by the appellant, the Tribunal in the said case, after taking due note of the Hon'ble Apex Court's pronouncements in the case of Ruc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y the Hon'ble Supreme Court in the case of Ruchi Soya [2022 (380) ELT 8 (SC)]. The relevant paras of the judgement is extracted as follows: "14. Admittedly, the claim in respect of the demand which is the subject matter of the present proceedings was not lodged by the respondent No. 2 after public announcements were issued under Sections 13 and 15 of the IBC. As such, on the date on which the Resolution Plan was approved by the Learned NCLT, all claims stood frozen, and no claim, which is not a part of the Resolution Plan, would survive. 15. In that view of the matter, the appeals deserve to be allowed only on this ground. It is held that the claim of the respondent, which is not part of the Resolution Plan, does not survive. The amount deposited by the appellant at the time of admission of the appeals along with interest accrued thereon is directed to be refunded to the appellant." 7. However from the date of approval of the resolution plan by the NCLT, the appeal filed by the applicant has abated and CESTAT has become functus officio in the matters relating to this appeal. 8.1. In view of the order passed by the Co-ordinate Bench of this Tr....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to a series of authoritative pronouncements and decisions on the subject matter, including the following: * Ghanashyam Mishra and Sons Pvt. Ltd. Vs. Edelweiss Asset Reconstruction Company Ltd. [2021 (4) TMI 613 - SC] * UOI and others Vs. Ruchi Soya Industries Ltd. [2022 (380) ELT 8 (SC)] * Ultra Tech Nathdwara Cement Ltd. Vs. Union of India [2020. (37) G.S.T.L. 289 (Raj.)] * MC Nally Sayaji Engineering Limited Vs. CCGST, Bolpur [2023 (4) TMI 1076 - CESTAT, KOLKATA] * CCE & ST, Surat-II Vs. Arcelor Mittal Nippon Steel India Ltd. [2023 (2) TMI 231 - CESTAT, AHMEDABAD] * Jet Airways India Ltd Vs. CST, Mumbai-V [2023 (5) TMI 767 - CESTAT, MUMBAI] * Bhushan Power & Steel Ltd Vs. CCE, Kolkata-IV [2023 (5) TMI 184 - CESTAT, KOLKATA] * Alok Industries Ltd Vs. CCE, Belapur & Mumbai [2022 (10) TMI 801 - CESTAT, MUMBAI] * Murli Industries Ltd Vs. CCE, Nagpur [2022 (11) TMI 289 - CESTAT, MUMBAI] 28.3 While referring to the decision of the Tribunal in the case of Alok Industries Ltd. [2022 (10) TMI 801 - CESTAT, MUMBAI] which analysed the position with regard to Rule 22 of The Rules, the Tribunal observed that ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....vernment 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; (i) 2019 amendment to Section 31 of the I&B Code is clarificatory and declaratory in nature and therefore will be effective from the date on which I&B Code has come into effect; (iii) Consequently all the dues including the statutory dues owed to the Central Government, any State Government or any local authority, if not part of the resolution plan, shall stand extinguished and no proceedings in respect of such dues for the period prior to the date on which the Adjudicating Authority grants its approval under Section 31 could be continued." 4.7 CBIC has vide Instruction No. 1083/04/2022-CX9 dated 23.05.2022 has laid down the guidelines (SOP) for NCLT cases. ....... 4.7 Applicant has claimed refund of pre-deposit as per judgement of Hon'ble Supreme Court in case of Ruchi Soya. [2022 (380) ....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... 60005/2024 dated 05.01.2024 - CESTAT, Chandigarh] 29.1 In the impugned case, the question with regard to non-inclusion and no provision having been made with regard to the said appeal in the Resolution Plan had come up for consideration. The Tribunal after going through the settled case-laws on the subject matter and in particular, referring to the judgement of the Hon'ble Apex Court in the case of Ghanashyam Mishra and Sons Pvt. Ltd. v. Edelweiss Asset Reconstruction Company Ltd. & Ors. (supra) dated 13.04.2021, adopted the settled position of law as held by the Hon'ble Apex Court, reiterated by the Tribunal in the case of Jet Airways (India) Ltd. (supra) vide order dated 12.05.2023. It would be apt to quote the following paragraphs from the said decision of the Tribunal: "6. After considering the submissions of both the parties and perusal of the Resolution Plan, we find that the identical matter has been considered by two coordinate benches of the Tribunal in the case of M/s Jet Airways (India) Limited vs. Commissioner of Service Tax-IV, by Mumbai Bench vide order dated 12.05.2023 and Icomm Tele Ltd. vs. Commissioner of Central Tax, Puducherry-GST by Hyderabad Benc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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; (ii) 2019 amendment to Section 31 of the I&B Code is clarificatory and declaratory in nature and therefore will be effective from the date on which I&B Code has come into effect; (iii) Consequently all the dues including the statutory dues owed to the Central Government, any State Government or any local authority, if not part of the resolution plan, shall stand extinguished and no proceedings in respect of such dues for the period prior the date on which the Adjudicating Authority grants its approval under Section 31 could be continued." 5. We also find that CBIC has vide Instruction No. 1083/04/2022-CX9 dated 23.05.2022 has laid down the guidelines in the form of Standard Operating Procedure (SOP) for handling the NCLT cases by the department, and reiterated the legal position that as operational creditors, GST and Customs authorities are required to submit their claims against the corporate debtors when the corporate insolvency and resolution process has been initiated. Once th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e appeal stands abated and the CESTAT becomes functus officio in the matter. 30. To similar ratio is the judgement in a series of cases, including that in the case of Orchid Chemicals & Pharmaceuticals Ltd. v. The Commissioner of G.S.T. & Central Excise [Service Tax Appeal No. 42474 of 2014 - Final Order No. 40066 of 2024 dated 18.01.2024 - CESTAT, Chennai] wherein the Tribunal held as under: "3.1 We find that the Mumbai Bench of the CESTAT, in the case of M/s. Jet Airways (India) Ltd. v. Commissioner of Service Tax-V, Mumbai & anor. In Final Order No. A/85896-85897/2023 dated 12.05.2023, has referred to an earlier order of the CESTAT in Final Order No. A/86026-86036/2022 dated 19.07.2022 in their own case, referred to the decision of the Hon'ble Apex Court in the case of Ghanashyam Mishra and Sons Pvt. Ltd. v. Edelweiss Asset Reconstruction Company Ltd. & Ors. (Civil Appeal No. 8129 of 2019) vide judgement dated 13.04.2021, and thereafter, has also referred to the C.B.I.C. Instruction No. 1083/04/2022-CX9 dated 23.05.2022, and ordered that the appeals before the Bench stand abated since the NCLT had approved the Resolution Plan in the Insolvency proceedings. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....utcome with that of the Final Order, either maintaining or setting aside the adjudication order/order under challenge. In the present circumstances, however, as stated earlier, there is no such order in the instant case either setting aside or maintaining the same, as the appeal herein simply abates. 32.1 The order of abatement cannot be construed to mean that the issue involved has been decided in favour of the appellant. The question of refund of pre-deposit is a natural corollary to the successful outcome of the appeal. Provisions of Rule 22 are in the nature of an exception where the issues raised in appeal filed are not required to be arbitrated upon and given a decisive pronouncement. To situations concerning insolvency proceedings, the provision of law available is Rule 22 of the CESTAT (Procedure) Rules, 1982, the scope of which has already been discussed in earlier paragraphs and which thereby have rendered the Tribunal functus officio in the matter. It is thus felt that no such order can be passed by the Tribunal in view of the existing provisions in law. ▪ Applicability of Rule 22 of the CESTAT (Procedure) Rules, 1982 in cases where Resolution Plan is approve....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Edelweiss Asset Reconstruction Company Ltd. [(2021) 9 SCC 657], and was concerned with the question of availment of transitional credit (TRAN-1) wherein the concerned company had undergone liquidation and the current management was not a taxpayer for the impugned period of procurement of inputs or capital goods, but the changed management had felt the need for recovery of such credit, by virtue of the Resolution Plan having been approved, of M/s. Vedanta Ltd. in terms of Section 31(1) of the Code, held as under: "5. Having heard learned counsel for the parties and after going through the averments made in the respective affidavits and the documents annexed therein and the judgments passed by the Hon'ble Apex Court referred to herein above it appears that the Petitioner revised its TRAN- 1 on 30.11.2022 and sought to avail Input Tax Credit amounting to Rs. 92,13,412/- against the 86 invoices of Capital Goods, which were not availed earlier, under Section 140(1) of the CGST Act, 2017. It also emerges that as per the judgment of Hon'ble Apex Court in the case of Ghanshyam Mishra and Sons Private Ltd. (supra), no recovery and or proceeding can be continued ag....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed the resolution plan of the Petitioner. Hence, the petitioner is not entitled to claim of Rs. 92,13,412/- which has been claimed by the Petitioner as Transitional credit by filing new TRAN-1 in light of the Order passed by Hon'ble Supreme Court in the case of Union of India Vrs. Filco Trade Centre Put. Ltd. being SLP (C) No. 32709-32710/2018." (Emphasis supplied) Viewed in the context, without amplifying, we would like to re-emphasize the obvious position of law that was laid down by the Hon'ble High Court. 35. The Hon'ble Apex Court, in the context of fastening duty liability against the legal representatives / estate of sole proprietor-deceased manufacturer, in the case of Shabina Abraham v. Collector of Central Excise and Customs [[2015 (322) E.L.T. 372 (S.C.)]], had asserted that it was impermissible to continue with the assessment proceedings in the altered circumstances. It had dwelt extensively into the provisions of Section 4(3)(a) of the Central Excise Act, 1944 regarding the "person who is liable to pay duty". The consequence of such an action undisputedly upon death, for instance, is that of abatement of the appeal in terms of Rule 22 of the Rules. The Hon....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used. 33. This Court has, in a plethora of judgments, referred to the aforesaid principles. Suffice it to quote from one of such judgments of this Court in Commissioner of Sales Tax, Uttar Pradesh v. Modi Sugar Mills, 1961 (2) SCR 189 at 198 :- In interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. The Court must look squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed; it cannot imply anything which is not expressed; it cannot import provisions in the statute so as to supply any assumed deficiency." (Emphasis supplied) 36. This Tribunal in a series of cases, some of which are listed hereinbelow, upon proceedings having been initiated and Resolution Plan having been approved, in accordance with the provisions of the Code, repeatedly held the appellate proceedings before it as non-maintainable and accordingly dismissed the appeals as infructuous allowing them to abate, besides as....
X X X X Extracts X X X X
X X X X Extracts X X X X
....The judgements cited by the Ld. Advocate for the appellant may not be applicable to the facts and circumstances of the present case. In the case of Ruchi Soya Industries Ltd - 2022 (380) ELT 8 (SC), the matter was before the Hon'ble Supreme Court against the rejection of a writ of mandamus filed before the Hon'ble Karnataka High Court assailing applicability of Notification No. 38/2002-(NT) dated 13.06.2002 to imported crude palm oil. In that context the Hon'ble Supreme Court directed refund of the amount collected at the time of admission of appeals pursuant to the resolution plan approved by the NCLT. Similarly, in the GGS infrastructure Private Limited's case, the Hon'ble Bombay High Court was approached by filing writ under article 226 claiming relief set out in paragraph 2 of the said order. The Hon'ble High Court while allowing the writ petition passed certain direction to be implemented including refund of the amount after adjustment. Also, the Hon'ble Karnataka High Court in Ruchi soya Industries Ltd's case, while disposing the writ appeal against the order of the single judge, dismissed the appeal on merit. In none of the above cases, the principle governing the circumstan....