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TMI Blog2023 (7) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... d their claim in Form-B, which has been accepted by the RP and revised claim has also been filed by the Respondent in Form-C, relying on judgment of the Hon ble Supreme Court in State Tax officer vs. Rainbow Paper Limited, which revised claim has not been accepted by the RP and an Application filed by Respondent with regard to revised claim is pending consideration before the Adjudicating Authority - In the present Appeal, we are not required to answer any question regarding nature of the claim of the Respondent. Only question which needs to be answered is that whether the Adjudicating Authority required to direct the Respondent to release the attachment so that assets of the Corporate Debtor can be used for the benefits of the creditors - In view of the Circular dated 23.03.2020 issued by Central Board of Excise and Customs, the Department itself has understood that when CIRP has been initiated for recovering any amount, the claim has to be filed and no recovery can be made since moratorium has been imposed under the Code. The Respondent after imposition of moratorium with effect from 27.04.2022 could not have recovered its dues. The attachment of the goods of the Corporate Deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the Code ), Corporate Insolvency Resolution Process ( CIRP ) was initiated against the Corporate Debtor vide order dated 04.03.2021 by the Adjudicating Authority. The Appellant was appointed as the RP in the Meeting of the Committee of Creditors ( CoC ) dated 23.05.2022. (iii) The Respondent had submitted its claim to the erstwhile Interim Resolution Professional ( IRP ) under Form B of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016) claiming a sum of Rs.39,62,94,872/-, which also included the amount of Rs.5,10,12,500/- for recovering which excise duty, tiles were attached. (iv) The RP issued a letter dated 10.09.2022 to the Respondent requesting them to release the attached goods. The RP filed an IA/765(AHM)2022 before the Adjudicating Authority, wherein following prayers were made: [A] That this Hon'ble Adjudicating Authority may be pleased to allow the present application, in the interest of justice; (B] That this Hon'ble Adjudicating Authority may be pleased to direct the opponent to forthwith release the goods (viz. vitrified tiles) seize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiation of CIRP and the Respondent has first charge over the attached assets. It is submitted that Respondent has auctioned the goods, but the auction purchaser could not take possession of the goods and the Department has to refund the amount with interest to the auction purchaser due to objections raised by the State Bank of India and orders passed by the Debt Recovery Tribunal and High Court. The Respondent is a secured creditor and revised claim for an amount of Rs.39,86,04,041/- in Form-C was filed in the light of the judgment of the Hon ble Supreme Court in State Tax Officer vs. Rainbow Paper Limited, Civil Appeal No.1661/2020, which has been rejected by the RP, against which the Application has already been filed by the Respondent on 15.04.2023 for its claim. The Adjudicating Authority has rightly rejected the IA/765(AHM)2022. 6. We have considered the submissions of learned Counsel for the parties and have perused the records. 7. The question which arise for consideration in the Appeal is as to whether RP was entitled for a direction from the Adjudicating Authority for release of the goods, which were under attachment of Respondent since 02.02.2018? 8. The copy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19. Dismissing the Appeal in paragraph 5 to 8, this Tribunal held following: 5. The order dated 15.01.2019 passed by the Adjudicating Authority which is part of the Appeal clearly indicates that Moratorium was declared by the Adjudicating Authority by para 14 of the order. 6. The Adjudicating Authority did not commit any error in not allowing I.A. 463 of 2019 in view of pendency of CIRP. We may refer to the judgment of the Hon'ble Supreme Court in Anand Rao Korada, Resolution Professional v. Varsha Fabrics Private Limited, (2020) 14 SCC 198 . 7. In the above case, Financial Creditor has filed an Application under Section 7 of the I B Code which was admitted on 04.06.2019 and Moratorium was declared. During the pendency of Moratorium in WP (C) No. 7939 of 2011, interim orders were passed by the Orissa High Court on 14.08.2019 and 05.09.2019. Appeal was filed in the Hon'ble Supreme Court challenging the interim order passed by the Orissa High Court on the ground that since CIRP proceedings has commenced against Respondent No. 4, proceedings before the High Court ought to have been stayed. The Hon'ble Supreme Court after referring to Sections 14, 238 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vested or contingent interest arising out of or incidental to property and that therefore the Interim Resolution Professional is entitled to move the NCLT for appropriate orders, on the basis that lease is a property right and NCLT has jurisdiction under Section 60(5) to entertain any claim by the corporate debtor. 13. The Hon ble Supreme Court while considering the jurisdiction of NCLT in Section 60, sub-section (5), sub-clause (c), laid down following: 37. ..But a decision taken by the Government or a statutory authority in relation to a matter which is in the realm of public law, cannot, by any stretch of imagination, be brought within the fold of the phrase arising out of or in relation to the insolvency resolution appearing in clause (c) of sub-section (5). Let us take for instance a case where a corporate debtor had suffered an order at the hands of the Income Tax Appellate Tribunal, at the time of initiation of CIRP. If Section 60(5)(c) of the IBC is interpreted to include all questions of law or facts under the sky, an Interim Resolution Professional/Resolution Professional will then claim a right to challenge the order of the Income Tax Appellate Tribunal bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are pending before BIFR/IFCL/OL/ appropriate authority under Insolvency and Bankruptcy Code, 2016 then in such cases recovery measures should not be resorted. In such cases public counsel should be advised to file affidavits for first charge under Section 11E of Central Excise Act, 1944 informing the quantum of confirmed demand to BIFR/IFCL/OL/DRT/Insolvency and Bankruptcy Code Authorities. 16. Further, the Circular dated 23.03.2020 by which Central Board of Indirect Taxes and Customs has issued certain clarification in respect of issues under GST law for companies under Insolvency and Bankruptcy Code, 2016. Clarification Item No.1 is relevant, which his to the following effect: Sl. No. Issue Clarification 1. How are dues under GST for pre-CIRP period be dealt? In accordance with the provisions of the IBC and various legal pronouncements on the issue, no coercive action can be taken against the corporate debtor with respect to the dues for period prior to insolvency commencement date. The dues of the period prior to the commencement of CIRP will be treated as ope ..... X X X X Extracts X X X X X X X X Extracts X X X X
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