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TMI Blog2023 (8) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... . 35,25,00,000/- to all the Creditors and almost 2 years has passed since the approval of the Resolution Plan and this Tribunal does not find any tangible and substantial reasons to set the clock back at this point of time. Appeal dismissed. - COMPANY APPEAL (AT) (CH) (INS.) NO. 346/2021 - - - Dated:- 2-8-2023 - [ Justice M. Venugopal ] Member ( Judicial ) And [ Shreesha Merla ] Member ( Technical ) For the Appellant : Mr. Raj Kumar Jhabakh , Advocate For the Respondent : Mr. T. K. Bhaskar , Sr. Advocate For Mr. Shabeer Ahmed Mr. Varun Mohan , Advocates , For R1 JUDGMENT ( Physical Mode ) [ Per : ShreeshaMerla , Member ( Technical ) ] 1. Challenge in this Appeal is to the Impugned Order dated 13/08/2020 passed in IA 1094/2020 in CP(IB)153/07/HDB/2019 by National Company Law Appellate Tribunal, Hyderabad Bench, allowing the Application 1094/2020 preferred by the Resolution Professional of the Corporate Debtor Company, seeking approval of the Resolution Plan of M/s Renganayaki Agencies . 2. The Appellant challenges the approval of the Resolution Plan on the ground that the Corporate Debtor owes Rs. 22,60,32,948/- towards default in paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We are, however, not inclined to grant such concession or waivers. The Resolution Applicant needs to approach the authorities concerned for permits, if required, and the same will be considered by the authorities concerned in accordance with law. The instant Resolution Plan meets the requirements of Section 30(2) of the Code and Regulations 37, 38, 38 (1A) and 39(4) of the Regulations. The Resolution Plan is not in contravention of any of the provisions of Section 29A of the Code and is in accordance with law. ( Emphasis Supplied ) 6. It is recorded by the Adjudicating Authority that the Plan is in compliance of Section 30(2) of the Code and Regulations 37, 38, 38(1A) and 39(4) of the CIRP Regulations, 2016. 7. As regarding the contention of the Learned Counsel for the Appellant that the decision of the Hon ble Supreme Court in the matter on State Tax Officer Vs. Rainbow Papers Limited , reported in [(2022) SCC Online SC 1162], is applicable to the facts of this case, this Tribunal is of the considered view that the ratio laid down by the Hon ble Apex Court in the matter on State Tax Officer Vs. Rainbow Papers Limited , (Supra) is with respect to whether the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Master Circular No.1053/02/2017-CX, issued by the Ministry of Finance, Department of Revenue, Central Board of Excise and Customs specifies that dues under Central Excise Act, 1944 would have first charge only after the dues under the Provisions of the Code are recovered. Once again, for better understanding of the case, Clause 20 of the Regulation is reproduced as hereunder: 20. Recovery from the assets under liquidation: Section 53 of the Insolvency and Bankruptcy Code, 2016 provides for order of priority for distribution of proceeds from the sale of the liquidation assets. Pari-materia changes have been made in Section 11E of the Central Excise Act, 1944. In effect, the Central Excise dues shall have first charge, after the dues, if any, under the provisions of Companies Act, Recovery of Debt due to Bank and Financial Institution Act, 1993 and Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and the Insolvency and Bankruptcy Code, 2016, have been recovered. 9. Keeping in view, the aforenoted Section of the Central Excise Act, 1944 is quite different from the GVAT Act, 2003 and Clause 20 of the aforenoted Circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not invested jurisdiction and authority either with NCLT or NCLAT, to review the commercial decision exercised by CoC of approving the resolution plan or rejecting the same. 166. The position is clarified by the following observations in para 59 of the judgment in K. Sashidhar [K. Sashidhar v. Indian Overseas Bank, (2019) 12 SCC 150 : (2019) 4 SCC (Civ) 222] , which reads thus : (SCC p. 187) 59. In our view, neither the adjudicating authority (NCLT) nor the appellate authority (Nclat) has been endowed with the jurisdiction to reverse the commercial wisdom of the dissenting financial creditors and that too on the specious ground that it is only an opinion of the minority financial creditors. 167. This Court in Essar Steel India Ltd. Committee of Creditors [Essar Steel India Ltd. Committee of Creditors v. Satish Kumar Gupta, (2020) 8 SCC 531 : (2021) 2 SCC (Civ) 443] after reproducing certain paragraphs in K. Sashidhar [K. Sashidhar v. Indian Overseas Bank, (2019) 12 SCC 150 : (2019) 4 SCC (Civ) 222] observed thus : (Essar Steel India case [Essar Steel India Ltd. Committee of Creditors v. Satish Kumar Gupta, (2020) 8 SCC 531 : (2021) 2 SCC (Civ) 443] , SCC p. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 31(1) of the Code lays down in clear terms that for final approval of a resolution plan, the adjudicating authority has to be satisfied that the requirement of sub-section (2) of Section 30 of the Code has been complied with. The proviso to Section 31(1) of the Code stipulates the other point on which an adjudicating authority has to be satisfied. That factor is that the resolution plan has provisions for its implementation. The scope of interference by the adjudicating authority in limited judicial review has been laid down in Essar Steel [Essar Steel India Ltd. Committee of Creditors v. Satish Kumar Gupta, (2020) 8 SCC 531 : (2021) 2 SCC (Civ) 443] , the relevant passage (para 54) of which we have reproduced in earlier part of this judgment. The case of MSL in their appeal is that they want to run the company and infuse more funds. In such circumstances, we do not think the appellate authority ought to have interfered with the order of the adjudicating authority in directing the successful resolution applicant to enhance their fund inflow upfront. 170. This Court observed, that the Court ought to cede ground to the commercial wisdom of the creditors rather than assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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