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TMI Blog2022 (3) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court vide order dated 10.10.2018 has passed the following order: "1. Heard Mr. Mihir Joshi, learned senior counsel with Mr. Dhaval Shah, learned advocate for the petitioner and Mr. Viral Shah, learned advocate for respondent. 2. While issuing the notice by oral order dated 4.5.2017, Division Bench of this Court recorded the submissions of learned senior counsel for the petitioner as under: "1. Mr. Mihir Joshi, Senior Advocate, learned counsel with Mr. Dhaval Shah, learned advocate for the petitioners has assailed the impugned orderin-original on several grounds. The attention of the court was invited to the impugned order to point out that the attention of the adjudicating authority was specifically drawn to the earlier order dated 05.02.1998 passed by the Commissioner (Appeals) in the assessee's own case, whereby the Commissioner had held in favour of the assessee. It was pointed out that the attention of the adjudicating authority was further invited to the subsequent order dated 04.02.2003 of the Commissioner (Appeals), whereby he had followed the earlier order dated 05.02.1998; however, the same has been brushed aside by the adjudicating authority on a fallacious pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power conferred under Section 31(1) of the Insolvency and Bankruptcy Code, 2016 thereby declaring the writ applicant company insolvent in terms of the insolvency resolution of corporate debtor recoverable. 4. Before we delve into the aforesaid aspect, it would be germane to take into consideration relevant facts of the case: 4.1 It appears from the record that the writ applicant company was incorporated way back in the year 1979 as a private limited company under the name and style of Vareli Weaves Private Limited. The writ applicant company was mainly engaged in the manufacturing of draw warped polyster yarn. Subsequently, on 17.07.1987, the writ applicant company became a public limited company. 4.2 It further transpires that the writ applicant company was not liable for any duty under the Central Excise Act and during the relevant assessment year had availed benefit of the exemption extended by the Union in the budget of 1995-96, in terms of Notification bearing No.35/95-CE, dated 16.03.1995 as amended by Notification bearing No.84/95-CE, dated 18.05.1995. 4.3 Subsequently, the respondent authority directed the writ applicant company for payment of duty under Rule 9(B) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fructuous and nonest as well as the respondents claim of Rs. 21,41,55,591/- stands extinguished and non recoverable with the passing of the order dated 19.09.2020 including addendum dated 23.09.2020 passed by the NCLT, Ahmedabad Bench, in case of the writ applicant. 6. At this stage, it would be appropriate to look into the relevant provision of the Insolvency and Bankruptcy Code, 2016 i.e. Section 31(1) of the Code, 2016, which reads as under: "31. Approval of resolution plan. - (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, [including the Central Government, any State Government or any local authority to whom a debt in respect of the payment of dues arising under any law for the time being in force, such as authorities to whom statutory dues are owed,] guarantors and other stakeholders involved in the resolution plan: Provided that the Adjudicating Authority shall, before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pending adjudication of the respondent revenue department is concerned, Mr. Dhaval Vyas, the learned Senior Standing Counsel appearing for the department has submitted that though the writ petition being declared as infructuous and abated, liberty may be reserved in favour of the revenue department to invoke Section 61 of the Insolvency and Bankruptcy Code, 2016, if in any eventuality such question arises for consideration in future. It would be appropriate to consider sub section (3) of Section 61 of the Code. We quote Section 61 of the Code, 2016 in it's entirety as under: "61. Appeal and Appellate Authority.- (1) Notwithstanding anything to the contrary contained under the Companies Act 2013 (18 of 2013), any person aggrieved by the order of the Adjudicating Authority under this part may prefer an appeal to the National Company Law Appellate Tribunal. (2) Every appeal under sub-section (1) shall be filed within thirty days before the National Company Law Appellate Tribunal: Provided that the National Company Law Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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