9911796707
TMI Blog2022 (11) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Vishal Agarwal, Shri Sunil Navandar & Ms. Dimple Gohil, Advocates appeared on behalf of the applicants. Shri Vishal Agarwal submits that as per the resolution plan approved by NCLT, no dues exist against the applicant therefore, the demand involved in the impugned order is not recoverable by the department. Hence, the demands in the impugned order deserve to be set aside. 03. On the other hand Shri J A Patel, learned Superintendent (AR) appearing on behalf of the revenue submits that there is no provision in the Central Excise Act, 1944 for setting aside the demand on the basis of the NCLT proceedings. 04. We have carefully considered the submissions made by both the sides and perused the records. We find that the NCLT has passed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... men who have been dealt with separately under Section 3.4 below), relating to the period prior to the Closing Date arise and/or are made and/or are admitted, then the amounts payable under this Plan to the Operational Creditors (other than (i) employees and workmen who have been dealt with separately under Section 3.4 below; and (fil the dues owed by the Company to certain Operational Creditors (to each of whom the Company, as on the Insolvency Commencement Date, owes up to Rs. 3,00,000/- (Rupees Three Lakhs) and whose details are set out in Annexure 9)), which aggregates to Rs. 4,83,47,321/- (Rupees Four Crores Eight Three Lakhs Forty Seven Thousand Three Hundred Twenty One) shall remain NIL, and shall not increase. Pursuant to the fore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would consequently qualify as "operational debt" (as defined under the IBC) and therefore, the full amount of such claims shall be deemed to be owed and due as of the Closing Date, the liquidation value of which is NIL and therefore, no amount is payable in relation thereto. (Il) In accordance with the foregoing, all claims (final or contingent, whether dispute or undisputed, and whether notified to or claimed against the Company) of all Governmental Authorities (including in relation to Taxes, and all other dues and statutory payments to any Governmental Authority), relating to the period prior to the Closing Date, shall stand fully and finally discharged and settled. (iii) All claims that may be made against the Company in rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Other Creditors, Governmental Authorities, persons who have paid any advances to the Company against supply of goods or services by the Company, and persons in respect of whom credit balances were written-back by the Company in the years ended March 31, 2016, March 31, 2017 and March 31, 2018 have all filed their claims and all verifiable claims as on the date of approval of this Plan by the CoC, have been admitted by the Resolution Professional and are disclosed in the Information Memorandum, provided that nothing contained herein shall result in an increase in the Total Financial Outlay proposed under this Plan. (ii) In the event any person that has any claim (s) against the Company (including Financial Creditors, Operational Creditors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l proceedings, alternative determination process, the levying of distress, in any jurisdiction whatsoever for the purpose of obtaining payment of any Liability, or for the purpose of placing the Company into liquidation or any analogous proceedings." From the above terms of the resolution plan approved by the NCLT, it prima facie appears that the appellant is not liable to pay any dues. However, this tribunal is not competent to decide regarding the recovery of any dues. It is the department who has to decide whether any dues is recoverable or otherwise, in the light of the resolution plan approved by the NCLT. 4.1 From the above facts, we find that as per the resolution plan approved by the NCLT and in the light of Hon'ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The appeals are disposed as infructuous. MA also stand disposed of. 06. Having decided the appeal as above, we note that IBC proceedings are being initiated against many companies who are either appellant or respondent in the appeals pending before this tribunal. We observed that the revenue-department has no proper guideline as to what stand is to be taken in a case where the IBC proceedings is in progress before NCLT/NCLAT or at higher forum. The assessee against whom the IBC proceedings are initiated invariably approach this tribunal through miscellaneous application for disposing of the appeals in the light of the NCLT's orders. However, in the absence of any guideline by the CBIC, the departmental representative are unaware as to wha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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