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TMI Blog2024 (10) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... o note that a Division Bench of the Gujarat High Court in the case of The Commissioner of Customs , [ 2022 (8) TMI 1459 - GUJARAT HIGH COURT ] while considering an appeal filed by the revenue in the case of Patanjali after noticing Section 32A of the IBC as well as the amended Section 31 of the IBC as also the judgment of the Hon ble Supreme Court in the case of Ghanshyam Mishra [ 2021 (4) TMI 613 - SUPREME COURT ] has held ' Thus taking into consideration the fact of the completion of the resolution process of the respondent by the NCLT and undisputed fact that the appellant has not lodged any claim in the capacity of the Operational Creditor before the Resolution Professional, this appeal is required to be disposed of as having become infructuous and abated with regard to any liability of any nature whatsoever having extinguished in view of the implementation of the Resolution Plan and change in management and control of the assessee in view of the provisions of section 31 and section 32A of the IBC.' It is clear from Section 5 (26) of the IBC as noticed above that the resolution plan is proposed by the applicant for continuing the business of the company as a going conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.2012 (Annexure-D) by the Commissioner of Customs, Mangalore [Commissioner], whereunder the demand of customs duty amounting to Rs. 19,40,00,646/- was confirmed. Being aggrieved, the assessee preferred an appeal before the CESTAT in Appeal No. 2657/2012. 3. During the pendency of the appeal, an order dated 8.12.2017/15.12.2017 under Section 7 of the Insolvency and Bankruptcy Code, 2016 [IBC] was passed by the National Company Law Tribunal, Mumbai Bench [NCLT] in CP No. 1371-1372/I BP/NCLT/MAH/2017, whereunder the NCLT ordered commencement of Corporate Insolvency Resolution Process [CIRP] against Ruchi Soya and an Interim Resolution Professional [IRP] was appointed to carry out the functions as per the IBC. Pursuant to the said order dated 8.12.2017, a public announcement was issued on 21.12.2017. Thereafter, the NCLT, vide order 24.7.2019 passed in MA No. 1721/2019 and other connected matters, accepted the modified resolution plan and approved the same, consequent to which change in control of the assessee has taken place and the name of Ruchi Soya was changed to Patanjali Foods Limited [Patanjali] as is forthcoming from the Certificate dated 24.6.2022 issued by the office of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ya Industries Ltd. (2022) 6 SCC 343, . It is further contended that reliance placed by the Tribunal on Rule 22 of the 1982 Rules to hold that the appeal has abated is erroneous and contrary to the decisions of the Hon ble Supreme Court as noticed above. Hence, he seeks for allowing the appeal and granting the reliefs sought for. 9. Per contra, learned Counsel for the respondent - revenue does not dispute the position of law as laid down by the Hon ble Supreme Court in the case of Ghanshyam Mishra and Ruchi Soya Industries Ltd.,. 10. The submissions of both the leaned counsels have been considered and the material on record have been perused. 11. The relevant fact situation as noticed above is undisputed, insofar as issuance of the show cause notice dated 17.2.2012 as also the Order-in-Original. The proceedings initiated against Ruchi Soya under the IBC are also a matter of record. Hence, from the aforementioned, it is clear that during the pendency of the appeal before the CESTAT, the proceedings under IBC against Ruchi Soya had commenced and also culminated with the acceptance of the modified resolution plan, consequent to which Patanjali has continued the business of Ruchi Soya, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the adjudicating authority grants its approval under Section 31 could be continued. (emphasis supplied) 13. The Hon ble Supreme Court in the case of Ruchi Soya Industries Ltd., was considering the following questions: 6. The short point that is involved is as to whether the claim of the present respondent which was admittedly not lodged before the resolution professional after public notices were issued under Sections 13 and 15 IBC could be considered at this stage. (emphasis supplied) 13.1 After noticing its earlier judgment in the case of Ghanshaym Mishra it has held as follows: 11. Admittedly, the claim in respect of the demand which is the subject-matter of the present proceedings was not lodged by Respondent 2 after public announcements were issued under Sections 13 and 15 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. 12. 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, which is not part of the resolution plan, does not survive. The amount deposited by the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod of sixty days of the occurrence of the event : Provided further that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period so specified, allow it to be presented within such further period as it may deem fit. 18. It is clear from a reading of the same that in the event a party to the appeal dies or is adjudicated as an insolvent or in the case of a company, is being wound up, the appeal would abate. However, in the present case, it is relevant to note the following provisions of the IBC. (5) Definitions: 5 (12) insolvency commencement date means the date of admission of an application for initiating corporate insolvency resolution process by the Adjudicating Authority under sections 7, 9 or section 10, as the case may be; 5 (17) liquidation commencement date means the date on which proceedings for liquidation commence in accordance with section 33 or section 59, as the case may be; 5 (26) resolution plan means a plan proposed by [resolution applicant] for insolvency resolution of the corporate debtor as a going concern in accordance with Part II; Explanation .- For removal of doubts, it is h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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