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TMI Blog2024 (10) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... , Order-in-Original was passed on 2.11.2012 and issued on 8.11.2012, wherein the Commissioner of Central Excise and Sale Tax, Mangaluru [Commissioner], ordered, inter alia, that an amount of Rs. 8,06,44,997/- being the Central Excise Duty on "RBD Palm Stearin" manufactured and removed, during the period 14.7.2009 to 26.8.2011 was confirmed. An amount of Rs. 2,97,29,891/- paid by the assessee was appropriated against the said demand and the remaining duty of Rs. 5,09,15,106/- was demanded. The assessee preferred an appeal in Excise Appeal No. 25387/2013 challenging the demand of Rs. 5,09,15,106/- passed vide the said order in original before the CESTAT. 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, 20164 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 Industries Ltd. [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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is further contended that the revenue did not make a claim before the IRP with regard to the Excise Duty demanded and having regard to Section 32A of the IBC and the judgments of the Hon'ble Supreme Court passed in the cases of Ghanshyam Mishra v. Edelweiss Reconstruction Company Ltd. (2021) 9 SCC 657, as also Ruchi Soya Industries Limited v. Union of India (2022) 6 SCC 343, the demand against the assessee has abated and the liability whatsoever has extinguished. It is further contended that a Division Bench of the Gujarath High Court in the case of Commissioner of Customs v. Patanjali Foods Limited (Formerly Ruchi Soya Industries Limited) Order dated 25.8.2022 passed in Tax Appeal No. 32/2019, the case of the appellant itself, has also followed the dicta laid down by the Hon'ble Supreme Court in the case of Ghanshyam Mishra and Ruchi Soya Industries Ltd., 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. 8. Per contra, learned Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in the case of Ghanshyam Misha10 was considering the following questions: "2 (i) As to whether any creditor including the Central Government, State Government or any local authority is bound by the resolution plan once it is approved by an adjudicating authority under sub-section (1) of Section 31 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "the I&B Code")? (ii) As to whether the amendment to Section 31 by Section 7 of Act 26 of 2019 is clarificatory/declaratory or substantive in nature? (iii) As to whether after approval of resolution plan by the adjudicating authority a creditor including the Central Government, State Government or any local authority is entitled to initiate any proceedings for recovery of any of the dues from the corporate debtor, which are not a part of the resolution plan approved by the adjudicating authority?" (emphasis supplied) 12.1. The Hon'ble Supreme Court answered the said questions as follows: "102. In the result, we answer the questions framed by us as under: 102.1. That once a resolution plan is duly approved by the adjudicating authority under sub-section (1) of Section 31, the claims as provided in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the aforementioned that the revenue not having made any claim before the IRP during the CIRP process and the demand not having been part of the resolution plan, has stood extinguished and cannot be continued. 15. It is relevant to note that a Division Bench of the Gujarath High Court in the case of The Commissioner of Customs, 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 has held as follows: "14. 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 as fortified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unless an application is made for continuance of such proceedings by or against the successor-in-interest, the executor, administrator, receiver, liquidator or other legal representative of the appellant or applicant or respondent, as the case may be: Provided that every such application shall be made within a period 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." 19. 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" mean ..... X X X X Extracts X X X X X X X X Extracts X X X X
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