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TMI Blog2022 (11) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... NS PRIVATE LIMITED THROUGH THE AUTHORIZED SIGNATORY VERSUS EDELWEISS ASSET RECONSTRUCTION COMPANY LIMITED THROUGH THE DIRECTOR ORS. [ 2021 (4) TMI 613 - SUPREME COURT] , it prima facie appears that the adjudged dues cannot be recovered by the department however, this issue has to be decided by the department and not by this tribunal. For this reason, that firstly, there is no provision made in the Customs and Central Excise Act to give effect of NCLT proceedings. This tribunal being creature under the Customs Act, even though the Insolvency and Bankruptcy Code have over riding effect over all the other acts, in absence of any explicit provision under the Customs/Central Excise Act, this tribunal cannot decide finally whether the adjudged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 order by approving resolution plan of the company M/s. Alok Industries Limited in favor of JM Financial Asset Reconstruction Company Limited and Reliance Industries Limited, who are the resolution applicant. The relevant terms of the resolution plan are reproduced below:- 3.3 Operational Creditors (including the Central Government, State Government or any local authority) 3.3.1 Amount to be paid to Operational Creditors pursuant to this Plan As per the Information Memorandum, the liquidation value of the Company is Rs. 4433,00,00,000 (Rupees Fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 foregoing, the Company shall have no Liability towards any Operational Creditors with regard to any claims (as defined under the IBC) relating in any manner to the period prior to the Closing Date. All such Liabilities shall immediately, irrevocably and unconditionally stand fully and finally discharged and settled, with there being no further claims whatsoever, and all forms of security created or suffered to exist, or rights to create such a security, to secure any obligations towards the Operational Creditors (whether by way of guarantee, bank gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 relation to any payments required to be made by the Company under Applicable Law, or in relation to any breach, contravention or non-compliance of any Applicable Law (whether or not such claim was notified to or claimed against the Company at such time, and whether or not such Government Authority was aware of such claim at such time), shall be deemed to be owed and due as of the Closing Date, and shall immediately, irrevocably and unconditionally stand abated, settled and extinguished. No Governmental Authority shall have any further rights or cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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, Other Creditors, Governmental Authorities, or otherwise), has not submitted its claims) (whether or not it was aware of such claim at such time), or if the claim(s) filed by any person has been reiected and/or not been admitted by the Resolution Professional (including any claim against the Company from GAIL (India) Limited arising directly or indirectly under, out of, or in relation to the gas sale agreement dated May 27, 2013 entered into between GAIL (India) Limited and the Company), then: (a) all such obligations, claims and li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 judgment in the case of Ghanashyam Mishra Sons Pvt. Ltd.-2021 SCC Online SC 313, it prima facie appears that the adjudged dues cannot be recovered by the department however, this issue has to be decided by the department and not by this tribunal. For this reason, that firstly, there is no provision made in the Customs and Central Excise Act to give effect of NCLT proceedings. This tribunal being creature under the Customs Act, even though the Insolvency and Bankruptcy Code have over riding effect over all the other act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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