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TMI Blog2022 (12) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... pur -I has not filed the claim while it was so notified by the RP. Even the claim has not been filed at the belated stage prior to approval of Resolution Plan by the CoC. The Appeal has been filed after the plan has been approved by the Adjudicating Authority. As a result of which the Appellant has not complied with the provisions of Section 13 15 of the Code - At this belated stage no fund is available out of the kitty of the Resolution Plan which can be earmarked to the Appellant as informed by the RP and the Resolution Applicant also. Both Resolution Applicant and RP has confirmed implementation of the plan and nothing remains to be adjudicated. It is very much clear that Section 238 of the Code provides very clearly that provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the CD and which had been rejected and returned by the buyer. 4. The ld. Counsel for the Appellant has stated that under the Central Excise Act, 1944, Central Excise Rules, 2002 and the Cenvat Credit Rules, 2004, a manufacturer of excisable goods is entitled to seek Cenvat Credit on inputs used in the manufacturing of certain goods manufactured and supplied by such manufacturer. However, in cases where such goods are rejected or returned by the buyer and are disposed without going through any manufacturing process, such manufacturer is required to pay excise duty equal to the amount of Cenvat credit claimed. Since the CD had failed to pay such excise duty for the period of 2011-12, a show cause notice was issued to the CD to show c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Authority was pleased to confirm the demand of Rs. 1,38,10,459/- and penalty of Rs. 1,38,10,459/- alongwith interest at applicable rate. 5. The CD was required to pay accordingly, an amount of Rs. 2,88,53,538/- for violation of various provisions of Central Excise Act, 1944 and relevant rules made thereunder. It was stated by the Ld. Counsel for the Appellant that the Adjudicating Authority initiated Corporate Insolvency Resolution Process (CIRP) vide its order dated 22.08.2019 on an application preferred under Section 7 of the Code before the Adjudicating Authority by the Financial Creditors. Mr. Rajesh Kumar Agarwal was appointed as Resolution Professional (RP) in the first Committee of Creditors (CoC) meeting. The Ld. Counsel has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased on correspondence/case file by the RP which is not the requirement of law so far. 9. The Respondent No.1/Resolution Applicant/CD has stated in its pleading that the appeal so filed involves abuse of process of law and not maintainable. The ld. Counsel for the R1 also stated that the Resolution plan so approved by the Adjudicating Authority under Section 31 of the Code warrants no interference. Now the law is settled that the commercial wisdom rest with the CoC and once the resolution plan is approved virtually it becomes untouchable. The Appellant has failed to file its claim when it was invited. The law provides for relief only for those who are diligent. Through elaborate pleadings, he has tried to justify that nothing can be done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution Applicant and RP has confirmed implementation of the plan and nothing remains to be adjudicated. c. It is very much clear that Section 238 of the Code provides very clearly that provisions of this Code to override other laws as also section 14 of the Code provides for moratorium during CIRP. d. We are not in a position even to accede to the request of the Appellant based on Hon ble Apex Court Judgment in Civil Appeal No. 1661 of 2020 with Civil Appeal No. 2568 of 2020 State Tax Officer (1) Vs. Rainbow Papers Limited 2022 Livelaw (SC)743 para 4-10. Even this Judgment has elaborately dealt with the filing of claims and submission of proof etc. However, in this case the property of the CD was attached by the Sales Tax Department pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IBC by issuance of newspaper publications. The last date for submission of claims was 5th October 2017. 9. After receipt of claims, a Committee of Creditors (CoC) was constituted on 10th October 2017. At its first meeting, the CoC passed a resolution to replace the IRP. Accordingly, Ramachandra D. Choudhary, a Chartered Accountant, was appointed as Resolution Professional (RP). The appointment of Mr. Choudhary was approved by the NCLT by an order dated 6th November 2017. 10. The appellant filed a claim before the RP in the requisite Form B, claiming that Rs.47.36 crores (approximately), was due and payable by the respondent to the appellant, towards its dues under the GVAT Act. The claim was filed beyond time. Hence this judg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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