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2023 (8) TMI 945 - SC - Companies LawRight of customs authorities (first right) to sell the imported goods under the Customs Act, 1962 and adjust the sale proceeds towards payment of customs duty - Preferential right of secured creditors over hypothecated movable property - winding up order passed - resolution of conflict between the Companies Act and the Customs Act - HELD THAT - The goods were not released on non-payment of customs duty etc. and, thereupon, show cause notices dated 17th February 2000 and 10th April 2000 were issued and two adjudication orders dated 15th September 2000 and 10th October 2000 were passed. In a similar factual matrix, a three judges bench of this Court in Commissioner of Customs, Calcutta and Another v. Biecco Lawrie Ltd. 2008 (2) TMI 646 - SUPREME COURT had examined the provisions of Section 15 of the Customs Act, as they then existed, and have opined that clause (b) to Section 15(1) of the Customs Act will cease to apply when the requirements under Section 68 of the Customs Act stand fulfilled and the imported goods are cleared for home consumption. In the context of the present case, we must hold that the debt had become due in terms of the two adjudication orders dated 15th September 2000 and 10th October 2000 and payable immediately. Thus, the customs duty became due and payable prior to twelve months next to the relevant date ; the relevant date' being the date of winding up of the Company on 1st December 2003. The amount due and payable in terms of the two adjudication orders dated 15th September 2000 and 10th October 2000 would, therefore, not fall in the category of preferential payments under clause (a) to Section 530(1) of the Companies Act. The provisions of the land revenue enactment applicable in the present case have not been relied upon by the respondents, in which event, a legal issue relating to conflict of laws would have arisen and required an answer. The provisions in the Customs Act do not, in any manner, negate or override the statutory preference in terms of Section 529A of the Companies Act, which treats the secured creditors and the workmen s dues As defined and payable in terms of Section 529(3)(b) of the Companies Act as overriding preferential creditors; and the government dues limited to debts due and payable in the twelve months next before the relevant date, which are to be treated as preferential payments under Section 530 of the Companies Act, but are ranked below overriding preferential payments and have to be paid after the payment has been made in terms of Section 529 and 529A of the Companies Act. Therefore, the prior secured creditors are entitled to enforce their charge, notwithstanding the government dues payable under the Customs Act. The provision of Section 142A of the Customs Act, insofar as it protects the rights of overriding preferential creditors governed and covered by Section 529A of the Companies Act, is clarificatory and declaratory in nature, and does not lay down a new dictum or confer any new right as far as the present case is concerned. However, the enactment of section 142A of the Customs Act does confer or create a first charge on the dues payable under the Customs Act, notwithstanding provisions under any Central Act, but not in cases covered under Section 529A of the Companies Act, RDDBFI Act, SARFAESI Act and the IBC. Section 142A of the Customs Act, post its enactment, would dilute the impact of Section 530 of the Companies Act, which had restricted preferential treatment to government taxes due and payable limited to twelve months prior to the relevant date , without preferential right for taxes that had become due and payable in the earlier period. On interpretation of Section 178 of the Income Tax Act, it was held that the provision is made applicable for any tax which is then or is likely to become payable , and specifically relates to cases where the company is in liquidation. Consequently, the amount specified and covered by Section 178 of the Income Tax Act is protected in view of the nonobstante clause in sub-section (6) to Section 178 and this amount has to be set aside. In terms of Section 178 of the Income Tax Act, the amount set aside will not form a part of the pool of dues to be distributed among ordinary or unsecured creditors or, for that matter, as indicated over the overriding or preferential creditors under Sections 529A and 530 of the Companies Act. The sale proceeds deposited in this Court and converted into fixed deposit receipts, along with the interest accrued thereon, will be paid to the Official Liquidator to be distributed in accordance with the provisions of Sections 529A and 530 of the Companies Act - Appeal allowed.
Issues Involved:
1. Whether the customs authorities have the first right to sell imported goods and adjust the sale proceeds towards payment of customs duty, notwithstanding the provisions of Section 529A and 530 of the Companies Act, 1956. 2. Whether the claim of a secured creditor has precedence over the right of the customs authorities to recover customs duty. 3. Interpretation of the expressions 'debt due' and 'debt due and payable' in Section 530(1)(a) of the Companies Act. 4. Whether the Customs Act creates a statutory first charge for payment of customs dues. Summary: Issue 1: Right to Sell Imported Goods The Supreme Court addressed the appeal by Industrial Development Bank of India (IDBI) against the Andhra Pradesh High Court's judgment, which held that customs authorities have the first right to sell imported goods and adjust the sale proceeds towards payment of customs duty, despite the winding-up order and provisions of Sections 529A and 530 of the Companies Act, 1956. The Company had imported machinery and its components, which were warehoused but not cleared for home consumption, leading to customs duty levies and orders for the sale of warehoused goods to recover the duty. The Official Liquidator's application for possession of the goods was initially allowed by a single judge, but the full bench of the High Court later ruled in favor of the customs authorities. Issue 2: Precedence of Secured Creditor The full bench of the Andhra Pradesh High Court had to decide whether a secured creditor's claim takes precedence over the customs authorities' right to recover customs duty. The High Court relied on the Calcutta High Court's decision in Collector of Customs v. Dytron (India) Ltd. and disagreed with the Madras High Court's view in UTI Bank Ltd. v. Deputy Commissioner of Central Excise and Another. The Supreme Court, however, emphasized that Section 529A of the Companies Act, a non-obstante provision, should prevail in case of conflict, giving priority to secured creditors and workmen's dues over other debts, including government dues under Section 530. Issue 3: Interpretation of 'Debt Due' and 'Debt Due and Payable' The Court interpreted the expressions 'debt due' and 'debt due and payable' in Section 530(1)(a) of the Companies Act, aligning with the judgment in Rajratha Naranbhai Mills Co. Ltd. v. Sales Tax Officer, Petlad. It held that a debt must not only be 'due' but also 'due and payable' within twelve months before the relevant date to qualify as a preferential debt. In this case, customs duty became 'due and payable' prior to the twelve months next to the relevant date, thus not qualifying as a preferential payment under Section 530(1)(a). Issue 4: Statutory First Charge under Customs Act The Court examined whether the Customs Act creates a statutory first charge for customs dues. It concluded that Sections 61, 72, and 142 of the Customs Act do not incorporate a statutory first charge overriding the general law, as per the dictum in Dena Bank v. Bhikhabhai Prabhudas Parekh & Co. The Court also noted that Section 142A of the Customs Act, inserted in 2011, does not apply to the present case and does not override the rights of secured creditors under Section 529A of the Companies Act. Conclusion: The Supreme Court allowed the appeal, setting aside the High Court's judgment, and directed that the sale proceeds be distributed in accordance with Sections 529A and 530 of the Companies Act, prioritizing secured creditors and workmen's dues over customs dues.
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