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TMI Blog2022 (10) TMI 1019X X X X Extracts X X X X X X X X Extracts X X X X ..... ken place with effect from 18.12.2019 and there is no involvement of any erstwhile promoters and erstwhile directors on the Board of Directors of respondent. Taking into consideration the fact of the completion of the resolution process of the respondent by the NCLT and undisputed fact that the appellant has not lodged any claim in the capacity of the Operational Creditor before the Resolution Professional, this appeal is required to be disposed of as having become infructuous and abated - Appeal disposed off. - R/TAX APPEAL NO. 18 of 2019 - - - Dated:- 25-8-2022 - HONOURABLE MR. JUSTICE N.V.ANJARIA AND HONOURABLE MR. JUSTICE BHARGAV D. KARIA MR DHAVAL D VYAS FOR THE APPELLANT MR DIPEN DESAI WITH MR RAJESH RAVAL FOR THE OPPONENT ORDER PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA 1.Draft amendment is allowed in terms of the draft. To be carried out forthwith. 2.The Commissioner of Customs has filed this appeal under section 130 of the Customs Act, 1962 challenging the order dated 23.04.2018 passed by the Customs, Excise and Service Tax Tribunal, (For short the CESTAT ) in Appeal No.C/490/2009-DB and C/CO/65/2010-DB. The respondent which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 and 15 of the IBC and as such, the present appeal is required to be dismissed only on that ground without going into the merits. 4.3) In support of his submissions, learned advocate Mr. Raval referred to and relied upon the order passed by the Apex Court in case of M/s. Ruchi Soya Industries Ltd. in Civil Appeal Nos. 447-448 of 2013, wherein the Apex Court while considering the issue of not lodging any claim under sections 13 and 15 of the IBC by the Customs department held that as on the date on which the Resolution Plan was approved by NCLT, all claims stood frozen and no claim which is not a part of the Resolution Plan would survive. 4.4) Reliance was also placed upon section 32A of the IBC, in which it is clarified that upon completion of corporate insolvency resolution process, liability of corporate debtor shall cease by providing a non-obstante clause to the effect that notwithstanding anything to the contrary contained in any law for the time being in force, the liability of a corporate debtor shall cease for an offence committed prior to the commencement of the corporate insolvency resolution process and the corporate debtor shall not be prosecuted for such an offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal has become infructuous and consequently, stands abated as any and all liability of any nature whatsoever of the appellant stands extinguished permanently. 5.On the other hand, learned advocate Mr. Dhaval Vyas for the appellant Commissioner of Customs submitted para-wise comments received by him on the additional affidavit filed by the respondent received from the office of the appellant and submitted that the Corporate Debtor s present status is a running concern with a different name after the liquidation process i.e. Ruchi Soya Industries Limited to Patanjali Foods Limited with effect from the date of incorporation in the Certificate issued by the Ministry of Corporate Affairs, Government of India. 5.1) It was pointed out that this Court vide order dated 22.06.2022 passed in Civil Application (For Fixing Date of Hearing) No. 1 of 2022 has not accepted the request and has deferred the consideration to final hearing of Tax Appeal in the matter. 5.2) It was submitted that NCLT, Mumbai by order dated 15.12.2017 has put moratorium on any recovery etc, till completion of Resolution Plan as per the provisions of IBC. Thereafter, it appears from the record that no proof of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the corporate insolvency resolution process was completed on 6.09.2019. It is also not in dispute that plan has been successfully implemented and consequently change in control and ownership of the respondent has taken place with effect from 18.12.2019 and there is no involvement of any erstwhile promoters and erstwhile directors on the Board of Directors of respondent. 10. Section 32A of the IBC insofar as it is relevant for the present, reads as under : (1) Notwithstanding anything to the contrary in this Code or any other law for the time being in force, the liability of a corporate debtor for an offence committed prior to the commencement of the corporate insolvency resolution process shall cease, and the corporate debtor shall not be prosecuted for such an offence from the date the resolution plan has been approved by the Adjudicating Authority under section 31, if the resolution plan results in the change in the management or control of the corporate debtor to a person who was not - (a) a promoter or in the management or control of the corporate debtor or a related party of such a person; or (b) a person with regard to whom the relevant investigating authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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; 102.2. 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; 102.3. 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. 14. Thus taking into consideration the fact of the completion of the resolution process of the respondent by the NCLT and undisputed fact that the appellant has not lodged any claim in the capacity of the Operational Creditor before the Resolution Professional, this appeal is required to be disposed of as having become infructuous and abated with regard to any liability of any nature whatsoever having extinguished in view of the implementation of the Resolution Plan and change in man ..... X X X X Extracts X X X X X X X X Extracts X X X X
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