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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 ..... ed. It is relevant to note that a Division Bench of the Gujarath 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 '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 that the resolution plan is proposed by the applicant for continuing the business of the company as a going concern . It is forthcoming that under the Scheme of the IBC, Part II contemplates Insolvency Resolution and Liquidation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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 Registrar of Companies, Mumbai. 4. The assessee namely, Patanjali filed Miscellaneous Applications before the CESTAT placing on record the subsequent event ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods 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 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 Mishra10 and Ruchi Soya Industries Ltd.,11. However, it is contended by the learned counsel that by virtue of the Order-in-original and pursuant to the show cause notice dated 26.3.2012, an Excise Duty of Rs. 8,06,44,997/- for the period 14.7.2009 to 26.8.2011 was confirmed and a sum of Rs. 2,97,29,891/- having been appropriated, a demand of Rs. 5,09,15,106/- was made. It is further contended that even as per the judgment of the Hon ble Supreme Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the resolution plan shall stand frozen and will be binding on the corporate debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the adjudicating authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan . 102.2. The 2019 Amendment to Section 31 of the I B Code is clarificatory and declaratory in nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 by the above orders passed by the Apex Court. (emphasis supplied) 16. Having regard to the position of law as noticed above, the demand of the revenue against the assessee cannot be continued. 17. Having regard to the contention of the learned Counsel for the revenue that the assessee will not be entitled to claim refund of the sum of Rs. 2,97,29,891/-, which has been appropriated pursuant to the Order-in-Original, it is relevant to note that pursuant to the Order-in-Original where the demand of Rs. 8,06,44,997/- was confirmed and a sum of Rs. 2,97,29,891/- was appropriated, the revenue raised the demand of Rs. 5,09,15,106/- which was prior to the init ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 hereby clarified that a resolution plan may include provisions for the restructuring of the corporate debtor, including by way of merger, amalgamation and demerger; 20. 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 concern . It is forthcoming ..... 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