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2022 (12) TMI 17 - AT - CustomsReview decision for recovery of the dues in view of order of liquidation - HELD THAT - This Tribunal in the case of Ultratech Nathdwara 2022 (10) TMI 936 - CESTAT AHMEDABAD in the identical situation has held that This tribunal being creature under the Customs Act, even though the Insolvency and Bankruptcy Code have over riding effect over all the other acts in absence of any explicit provision under the Customs/Central Excise Act, this tribunal cannot decide finally whether the adjudged amount can be recovered by the department or otherwise. These appeals have become infructuous, therefore, the appeals are disposed off as infructuous without deciding any merit of the case. Aggrieved persons are given liberty to approach this Tribunal with appropriate application if at all anyone wants to pursue this appeal on merit. Appeal disposed off.
Issues:
1. Review of decision for recovery of dues in the light of NCLT order dated 06.08.2019 liquidating the appellant company. 2. Applicability of Rule 22 of CESTAT Procedure Rules, 1982 in the case of a company under insolvency resolution process. 3. Determination of recovery of adjudged dues in the absence of explicit provisions under Customs and Central Excise Act. 4. Lack of guidelines for revenue department regarding cases where IBC proceedings are ongoing before NCLT/NCLAT. Issue 1: The judgment discusses the NCLT order dated 06.08.2019 liquidating the appellant company and the implications on the recovery of dues by the revenue department. It highlights that the NCLT order has a significant impact on the recoverability of dues, making it unnecessary to decide the appeal on its merits. The tribunal emphasizes that the department needs to review the recoverability of dues in light of the NCLT order, as seen in a similar case involving Ultratech Nathdwara. The tribunal concludes that the appeal has become infructuous due to the NCLT order, and dismisses it accordingly. Issue 2: The judgment delves into the applicability of Rule 22 of CESTAT Procedure Rules, 1982 in the context of a company under insolvency resolution process. It clarifies that Rule 22 is relevant when a company is wound up, not when it is undergoing insolvency resolution. The tribunal distinguishes the present case from a previous judgment involving a wound-up company, emphasizing that Rule 22 does not apply to an ongoing company like the appellant. The tribunal underscores that the decision on the recovery of dues lies with the department and not the tribunal. Issue 3: Regarding the determination of recovery of adjudged dues in the absence of explicit provisions under the Customs and Central Excise Act, the judgment elucidates that the tribunal lacks the authority to conclusively decide on the recoverability of the amount. It stresses that the department must resolve the issue as there is no provision in the Acts to give effect to NCLT proceedings. The tribunal highlights the need for the department to make a decision on the recoverability of dues based on the NCLT-approved resolution plan. Issue 4: The judgment addresses the lack of guidelines for the revenue department in cases where IBC proceedings are ongoing before NCLT/NCLAT. It notes that many companies involved in appeals before the tribunal are subject to IBC proceedings, creating uncertainty for the revenue department on the appropriate course of action. The tribunal recommends that the Central Board of Indirect Taxes & Customs issue guidelines for dealing with cases where IBC proceedings are underway, to provide clarity to departmental representatives. It emphasizes the importance of having a structured approach in such situations to streamline the process for all parties involved.
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