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2023 (11) TMI 474 - AT - Service TaxContinuation/abatement of appeal - Order of NCLT approving the resolution plan has been passed - Non-payment of service tax - HELD THAT - The Mumbai bench of this Tribunal in the case of M/s Alok Industries Ltd s case 2022 (10) TMI 801 - CESTAT MUMBAI analysed in detail Rule 22 of CESTAT (Procedure) Rules, 1982 and the case laws on the issue including those cited by the Ld. Advocate for the appellant observed that aforesaid Rule 22 should be applicable the moment the successor interest with sufficient rights is appointed by NCLT to make an application for continuation of the proceeding. The Hon ble Supreme Court and High Courts in a catena of cases held that the Tribunal is a creature of the statute; it cannot travel beyond the express powers vested under the Statute or Rules framed under the statute while deciding a statutory Appeal filed before it against the Orders of the prescribed statutory authorities mentioned under the statute. The corollary, any order passed by the Tribunal beyond the vested powers under the statute would be non est in law. The view consistently expressed by this Tribunal in a series of cases that the appeal abates once the IRP is appointed and/or Resolution plan approved, agreed upon - the appeal abates as per Rule 22 of CESTAT (Procedure) Rules, 1982.
Issues involved:
The appeal against the Order-in-Original passed by the Commissioner of Central Excise, Cus. & ST, Belgaum for non-payment of service tax on services provided by Goods Transport Agency. The main issue is whether the appellant can continue with the appeal and claim relief after the National Company Law Appellate Tribunal (NCLAT) upheld the order of the National Company Law Tribunal (NCLT) approving the resolution plan. Issue 1: Appellant's entitlement to continue with the appeal post NCLAT's decision The appellant, engaged in the business of winning iron ore and red oxide minerals, availed services of Goods Transport Agency for transportation. The appeal was filed against non-payment of service tax. During the appeal, NCLT approved the resolution plan against the appellant, which was upheld by NCLAT. The appellant argued that the appeal abates post NCLAT's decision, relying on Supreme Court judgments. The Revenue contended that once the resolution plan is approved, appeals stand abated as per CESTAT (Procedure) Rules. The Tribunal analyzed Rule 22 of CESTAT (Procedure) Rules, noting that the appeal abates when the successor interest is appointed by NCLT to continue proceedings. As no application was made by the successor interest, the appeal stands abated post NCLT's approval of the resolution plan. Issue 2: Interpretation of CESTAT (Procedure) Rules, 1982 Rule 22 of CESTAT (Procedure) Rules, 1982 states that proceedings abate upon the death or insolvency of a party unless continued by the successor-in-interest. The Tribunal, citing precedents, emphasized the importance of successor interest being appointed by NCLT to continue proceedings. The Tribunal held that once the resolution plan is approved by NCLT, the appeal abates as per Rule 22, and CESTAT becomes functus officio. Any order beyond the statute's express powers would be non est in law. The consistent view is that the appeal abates upon the appointment of the Interim Resolution Professional and approval of the resolution plan. Significant Phrases: - Goods Transport Agency services - National Company Law Tribunal (NCLT) - National Company Law Appellate Tribunal (NCLAT) - CESTAT (Procedure) Rules, 1982 - Successor-in-interest - Resolution plan approval - Supreme Court judgments - Abatement of appeal - Functus officio - Non est in law
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