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TMI Blog2024 (4) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... xtinguished. Further, if at all the Revenue retains the pre-deposits made by the Petitioner; the same would amount to unjust enrichment since the very tax liability which was subject matter of appeals, stood extinguished. So far as stand of the Revenue that Refund application of Petitioner was examined as per Circular No. 984/08/2014-CX dated 16.09.2014; in this regard, it is observed that the said circular is inapplicable to the facts of the instant case and it is of a period prior to the enactment of the Insolvency Bankruptcy Code, 2016. Moreover, there is no reference to the said circular in the impugned order. In the case of Rainbow Papers [ 2022 (9) TMI 317 - SUPREME COURT] , the Revenue not only filed its claims before the resolution professional and also had challenged the resolution plan before the NCLT. However, in the instant case, there was neither any claim filed by the Revenue before the resolution professional nor there was any challenge by the Revenue to the resolution plan or any other orders passed by the NCLT. In the case of Sanjay Kumar Agarwal [ 2023 (11) TMI 54 - SUPREME COURT] , a review was filed against the judgment in Rainbow Papers and the same was dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r preferred another application before Respondent No. 1 seeking a refund of pre-deposit as per section 35-F of the Central Excise Act but Petitioner's application was rejected vide order passed by Respondent No. 3. 4. Mr. Indrajit Sinha, learned counsel for the petitioner submits that the petitioner was served with the show cause notices by the Revenue, raising a demand alleging wrongful availment of CENVAT credit by the Petitioner. The petitioner replied to the same and thereafter Orders-in-Original were passed demanding tax from the petitioner. Against the Orders-in-Original, the Petitioner preferred appeals before the CESTAT Kolkata. He further submits that in terms of section 35F of the Central Excise Act, 1944, the Petitioner had also made pre-deposits in the aforesaid appeals totalling to an amount of Rs. 2,06,31,608/-. During the pendency of the aforesaid appeals before the CESTAT, Kolkata, a petition under section 7 of the Insolvency & Bankruptcy Code, 2016 (the "IBC") was filed against the Petitioner by its financial creditor State Bank of India, before the National Company Law Tribunal, Kolkata (the "NCLT, Kolkata"). The said petition was admitted vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scope of the proceedings under the IBC. Respondent No. 2 has misconstrued the order passed by the NCLT and has failed to appreciate that the extinguishment of claim is that of the Revenue against the Petitioner, and the same will not be a bar to claim of refund of the pre-deposit made by the Petitioner in the appeals, since now the demanded amounts do not survive as the same were not claimed by the Revenue in the corporate insolvency resolution process of the Petitioner. 5. Mr. Amit Kumar, learned counsel for the respondent submits that the refund application of appellant was examined in the light of conditions stipulated in Circular No. 984/08/2014-CX dated 16.09.2014 issued by Government of India, Ministry of Finance, Department of Revenue, Central Board of Excise & Customs for refund of Pre-deposit. He further submits that where the appeal is decided in favour of the party/assesse, he shall be entitled to refund of the amount deposited along with the interest at the prescribed rate from the date of making the deposit to the date of refund in terms of Section 35FF of the Central Excise Act, 1944 or Section 129EE of the Customs Act, 1962. However, in the instant case the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2021, wherein the Resolution Plan has already been approved by the Kolkata Bench of this Tribunal on 22.06.2018. Once the Resolution Plan is approved by Adjudicating Authority under Sub-Section (i) of Section 31 of IBC, 2016 all claims which are not part of the Resolution Plan shall stand extinguished and no persons will claim any dues including the statutory dues owed to Central, State Government or any local authority. This Tribunal is of the view that pursuant to approval of the Resolution Plan such claims cannot be entertained. Accordingly, this Petition is ALLOWED." 8. It further appears that since the very tax liability under the aforementioned Orders-in-Original stood extinguished which was also confirmed by the aforesaid order dated 22.04.2022 passed by the Ld. NCLT, the Petitioner filed miscellaneous applications before the Ld. CESTAT in the pending appeals narrating all the facts qua the proceedings before the NCLT and seeking orders disposing the appeal in terms of the orders of the NCLT and consequential reliefs. Thereafter, vide order dated 22.02.2023 passed by the Ld. CESTAT, the Petitioner's appeals were dismissed as withdrawn. The Petitioner thereafter vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority, if not part of the resolution plan, shall stand extinguished and no proceedings in respect of such dues for the period prior to the date on which the Adjudicating Authority grants its approval under Section 31 could be continued." The aforesaid judgment in the case of Ghanashyam Mishra (supra) was followed by the Hon'ble Supreme Court in the case of M/s Ruchi Soya Industries v. Union of India reported in (2022) 6 SCC 343, wherein it was again reiterated by the Hon'ble Apex Court as under: - "10. We find that the present appeals are squarely covered by the law laid down by this Court in the case of Ghanashyam Mishra (supra)……. 11. Admittedly, the claim in respect of the demand which is the subject matter of the present proceedings was not lodged by the respondent no. 2 after public announcements were issued under Sections 13 and 15 of the IBC. As such, on the date on which the Resolution Plan was approved by the learned NCLT, all claims stood frozen, and no claim, which is not a part of the Resolution Plan, would survive. 13. In that view of the matter, the appeals deserve to be allowed only on this ground. It is held that the claim of the respondent, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade as per section 35F of the Central Excise Act, 1944 and section 35FF of the said Act contains provision for interest on delayed refund of pre-deposit. So far as stand of the Revenue that Refund application of Petitioner was examined as per Circular No. 984/08/2014-CX dated 16.09.2014; in this regard, it is observed that the said circular is inapplicable to the facts of the instant case and it is of a period prior to the enactment of the Insolvency & Bankruptcy Code, 2016. Moreover, there is no reference to the said circular in the impugned order. The Revenue has placed reliance on judgments of the Hon'ble Supreme Court in the cases of: (i) State Tax Officer v. Rainbow Papers Ltd. [reported in (2023) 9 SCC 545] (ii) Sanjay Kumar Agarwal v. State Tax Officer [reported in 2023 SCC OnLine SC 1406] The said judgments are on completely different facts and are inapplicable in the facts of the instant case. In the case of Rainbow Papers, the Revenue not only filed its claims before the resolution professional (refer para 10 of SCC) and also had challenged the resolution plan before the NCLT (refer para 15 of the SCC). However, in the instant case, there was neither any claim filed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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