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TMI Blog2024 (4) TMI 1211X X X X Extracts X X X X X X X X Extracts X X X X ..... ommonly understood as extinguishing the right of action itself. It further categorizes to state, that the right of prosecution is effectually wiped out and that would equally apply to an action to cease, terminate or come to an end prematurely. Moreover, the effect of the various clauses of the Resolution Plan is to wipe-out and extinguish all sub-judice claims in the matter - In effect, winding up is a reference to the closing down of business operations of a corporate, whereby the assets are sold off, creditors paid and the remaining assets distributed amongst the owners. On the other hand, liquidation is essentially an accounting process by way of which the commercial operations and the existence of the corporate / company concerned are brought to an end. The assets and properties of business are redistributed amongst the various stakeholders. Thus what has essentially transpired in the present appeals is the closure of business operations of the erstwhile appellant viz. BSL and its acquisition and to accord it a fresh lease of life as per the terms of the Resolution Plan (including warding off all accrued debts and liabilities of the erstwhile organization) under a whiff of fre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dwara Cement Limited v. Commissioner of Customs, Jamnagar (Preventive) [ 2022 (10) TMI 936 - CESTAT AHMEDABAD ] wherein the very question raised by the learned Sr. Counsel that Rule 22 of The Rules was applicable to a company only when it gets wound up was one of the issues under consideration. It was categorically asserted by the Tribunal that there is no provision under the Customs and Central Excise Act/Rules to give effect to NCLT proceedings. The Tribunal being a creature of the statute, in the absence of any explicit provision, it is handicapped to decide on the same. The Tribunal has consistently held that the appeal abated (once the IRP is appointed and Resolution Plan approved) as per Rule 22 of the CESTAT (Procedure) Rules, 1982 and that is the only relief / Order that could be passed as prescribed under the Rules. Thus, any order passed by the Tribunal beyond the vested powers would ipso facto be non-est in law. Thus, the position as explained with reference to Rule 22 and Rule 41 of the CESTAT (Procedure) Rules, 1982, the observations of the Hon ble Apex Court in the case of Ghanashyam Mishra and Sons Pvt. Ltd. v. Edelweiss Asset Reconstruction Company Ltd. [ 2021 (4) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seeking early hearing, etc., it has been informed by way of additional submissions that during the pendency of the present appeals, insolvency proceedings against the appellant viz. M/s. Bhushan Steel Ltd. [BSL] came to be initiated on 26.07.2017 by the State Bank of India under the provisions of the Insolvency and Bankruptcy Code, 2016 [The Code] and an Interim Resolution Professional [IRP] was appointed, for needful in accordance with the provisions of the Code. The Revenue being an operational creditor within the meaning of Section 5(20) of the Code, also filed its claim for Operational Debt before the IRP. Finally, the Resolution Plan submitted by M/s. Tata Steel Ltd. before the Committee of Creditors (CoC) got approved by the National Company Law Tribunal (NCLT) on 15.05.2018. The said order of the NCLT was affirmed by the National Company Law Appellate Tribunal (NCLAT) vide order dated 10.08.2018. The appellant-company have placed on record a copy of the relevant portion of the Resolution Plan, along with the claim filed by the Revenue and the orders of NCLT and NCLAT as stated above. 2.2 The Corporate Insolvency Resolution Process [CIRP] thus initiated, culminated into the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee also stand wiped out and extinguished. 4.2 The appellant-company have submitted that the original appellant viz. M/s. BSL had filed the present appeals as they were denied the benefit of input tax credit by the Ld. Commissioner vide Orders-in-Original referred to supra and that during the pendency of these appeals, the CENVAT Credit availed was reversed. They therefore submit, in view of the facts as stated above, that though the claim of the Department stands extinguished, a direction is required from this Tribunal to the Department to give back the amount said to be deposited on account of pre-deposit. 5. The aforesaid narration of the factual history of the present appeals is so done as it would help appreciate the course of arguments as undertaken by the appellant during the course of personal hearing held before us on 21.02.2024. 6. Both sides have no qualms over the fact of the impugned appeals being allowed to abate, having been rendered infructuous in view of the aforesaid developments and in keeping with the provisions in law and there being no application on record seeking continuance thereof. 6.1 We therefore, unhesitatingly hold that in the light of the settl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) iii. State of Gujarat v. Essar Steel Ltd., 2016 SCC OnLine Guj 4125. iv. U.N. Cement Ltd. v. Asst. Commr, CT, MANU/RH/0679/2022 v. Ultratech Nathdwara Cement Ltd. v. Assistant Comm., MANU/RH/0775/2022 (c) The appellant further submitted that the Tribunal, in terms of the omnibus powers vested in it under Rule 41 of the Rules, can give a direction for the refund of pre-deposit by way of execution of its Orders to secure the ends of justice. The learned Senior Advocate on behalf of the appellant-company stated that the Tribunal enjoys wide ranging powers for such directions to be issued that were incidental and inherent in the Orders of the Tribunal regarding abatement of proceedings. It is their case that in view of the following decisions, the Tribunal does not become functus officio in this regard:- i. J.K. Synthetics Ltd v. CCE, (1996) 6 SCC 92 ii. State of Gujarat v. Essar Steel Ltd., 2016 SCC OnLine Guj 4125 iii. U.N. Cement Ltd. v. Asst. Commr, CT, MANU/RH/0679/2022 (d) Finally, they also submitted that reliance by the Tribunal on Rule 22 of the Rules is inapposite and pointed out that the said Rule applies only in cases of winding up of a company whereas in the instant case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... numerated hereunder:- ▪ Rule 22: Continuance of proceedings after death or adjudication as an insolvent of a party to the appeal or application. Where in any proceedings the appellant or applicant or a respondent dies or is adjudicated as an insolvent or in the case of a company, is being wound up, the appeal or application shall abate, 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. ▪ Rule 41: Orders and directions in certain cases. The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent abuse of its process or to secure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) above, It is quite clear that the effect of an appeal abating would result in eliminating or nullifying the appeal for a reason unrelated to the merits of the claim/issues raised and agitated in the appeal. 13.1 Viewed in this context, the appeals filed by the appellants herein are said to abate i.e., cease to exist, having been rendered infructuous in the light of the provisions of the Code and the approved Resolution Plan in terms of the provisions of the said Code. What is relevant is the point in time when the appeal ceases to be effectively operative. Thus, in terms of Section 14(1) of the Code which reads as under: 14. (1) Subject to provisions of sub-sections (2) and (3), on the insolvency commencement date, the Adjudicating Authority shall by order declare moratorium for prohibiting all of the following, namely: (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the effect of abating actually emanates out of the process of a company being wound up/liquidated, but for an application made for continuance of such proceedings. It would also be imperative to understand the fine difference, if any, between the cases of winding up and liquidation . Thus, as viewed and evident from a bare reading of the legal provisions in the context of Rule 22 of the said Rules the two terms have been used rather loosely, though resulting in the same implied consequence. The heading of Rule 22 is concerned with the continuation of the appeal proceedings after being adjudged insolvent. Impliedly, the switch-over of the defaulting company by following the statutory process laid out in the Code is nothing more but a case of insolvency of the erstwhile appellant-company and hence winding up of the earlier organization. Moreover, a careful reading of Rule 22 of The Rules categorically states, where in any proceedings the appellant is adjudicated as an insolvent . Thus, to hair-split the argument that Rule 22 cannot be applied to the fact of the case as it deals with winding up of the company is not essentially made out. There is thus no doubt that the present proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dation and winding up as under: LIQUIDATION. Voluntary liquidation of a company, though merely for the purpose of reconstruction, is none the less a liquidation within a clause of forfeiture in a lease to the company (Horsey v Steiger [1898] 2 Q.B. 259). But voluntary liquidation is equivalent to bankruptcy , as that latter word was used in Conveyancing and Law of Property Act 1881 (c.41), s.14(6, i), and Conveyancing and Law of Property Act 1892 (c.13), s.2(2); therefore, in cases provided for by the latter section, notice would have to be given under the first section (same case [1899] 2 Q.B. 79). See further Watney v Ewart, 18 TLR. 426, in House of Lords sub nom. Fryer v Ewart [1902] A.C. 187-see the Law of Property Act 1925 (c.20), s.205. Forfeiture on liquidation is worked immediately on the making of a winding-up order (General Share Co v Wetley Co, 20 Ch. D. 260). WINDING-UP. The winding-up of the affairs of a company, registered under the Companies Acts, is of three kinds- (a) Compulsory, or by the court: see hereon Companies Act 1985 (c.6), ss.512-571. (b) Voluntary: see hereon Companies Act 1985 (c.6), ss.572-605; Buckl. 345-365; see Re National Company for Distribution o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e subject under consideration. Hence, its impact with reference to the appeals herein, would be as if there were no pending appeals in the first place. To this extent, the law is categorical as regards the understanding and interpretation of the term abatement . In contrast to this, the assessee has referred to, by virtue of procedural variations, a distinction between winding up and liquidation , which to our mind would not be relevant for the limited understanding of the issue in these appeals. In effect, winding up is a reference to the closing down of business operations of a corporate, whereby the assets are sold off, creditors paid and the remaining assets distributed amongst the owners. On the other hand, liquidation is essentially an accounting process by way of which the commercial operations and the existence of the corporate / company concerned are brought to an end. The assets and properties of business are redistributed amongst the various stakeholders. 17.1 In fact Wikipedia (www.wikipedia.org) notes that when a firm is liquidated, it at times is also referred to as wound up or dissolved . Notably, thus there may not be a major difference in substance between the two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epreneurship amongst others. 19.2 For all practical and legal purposes, the original corporate debtor (BSL) is wound up and ceases to exist from the date of the NCLT order. No statutory returns are being filed, no listing on other statutory boards like stock exchange, banks or other governmental organizations with legal recognition like labour, environment, etc., remains thereafter i.e., with effect from the date of adjudication and passing of the Order under Section 31 of the Code. ▪ Scope of the inherent powers contemplated under Rule 41 of the Rules. 20. The appellant in support of their stance, concerning powers vested in the Tribunal under Rule 41 of The Rules, have essentially referred to the law as set out by the Hon ble Apex Court in the case of J.K. Synthetics Ltd. v. Collector of Central Excise [(1996) 6 SCC 92] and that in the case of State of Gujarat v. Essar Steel Ltd. [2016 SCC OnLine Guj 4125] While none of the two cases were concerned with a kind of situation as in the present appeals, in J.K. Synthetics Ltd. [(1996) 6 SCC 92] case the Hon ble Apex Court dwelt with a matter of recall of an ex-parte order where the counsel for the appellant could not appear bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the powers to secure the ends of justice with respect to its orders. It was pointed out that the CEGAT had powers to set aside ex-parte orders for the reasons as contained in the said order. The legal aspects for consideration in the present matter are nowhere akin. ▪ A Note on functus officio 21. Narotam Desai s A Manual of Legal Maxims, Words, Phrases c. (Fourth Edition) by P.M. Bakshi, Adarsh B. Dial, in the context of functus officio, reads as under: -` Functus officio. Having discharged a duty; one whose duty has ceased; one who having discharged his duty has terminated his authority or appointment. Plural, functi officio A person who has discharged his duty, or whose office or authority is at an and. Wharton's Concise Law Dictionary. As soon as an award has been made and filed in court, the powers of the arbitrators come to an end; they become functus officio, and it is not open to a dissentient arbitrator to come in, afterwards, and sign the award. Ramesh Chandra v Ka- runamoyi, 33 Cal 498. As soon as a criminal case is decided, and the accused convicted and sentenced, the court is functus officio, and has no power to suspend the operation of his sentence and to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leted the performance of its functions under the Registration Act, and had become functus officio, and thereafter it had no power under section 33 of the Stamp Act to impound the instrument. Komal Chand v State of M.P., AIR 1966 MP 20 (FB). Sugar manufacturers filed writ petition in the High Court challenging the price fixed by the Central Government. The High Court passed interim orders by virtue of which the manufacturers could realise prices higher than the controlled price. Later on, they withdrew the writ petitions, and the government filed miscellaneous applications for direction that the sugar manufacturers should be directed to pay back the excess price re- covered by them under the interim orders. It was argued that the applications were not maintainable because after decision of the writ petitions the High Court had become functus officio. The court rejected this contention. It was held that every court becomes functus officio after it decides a case, except for the purpose of reviewing its decision where it is moved for review. To say that the court becomes functus officio only means that the court cannot reopen the same controversy and cannot redecide the matter. The do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 53: 2008 (14) SCC 171) 26. It is true that once an Authority exercising quasi-judicial power takes a final decision, it cannot review its decision unless the relevant statute or rules permit such review. But the question is as to at what stage an authority becomes functus officio in regard to an order made by him. P. Ramanatha Aiyer's Advanced Law Lexicon (3rd Edn., Vol. 2 pp. 1946- 47) gives the following illustrative definition of the term 'functus officio': 'Thus a Judge, when he has decided a question brought before him, is functus officio, and cannot review his own decision. ..... 28. We may first refer to the position with reference to Civil Courts. Order 20 of the Code of Civil Procedure deals with judgment and decree. Rule 1 explains when a judgment is pronounced. Sub-rule (1) provides that the Court, after the case has been heard, shall pronounce judgment in an open Court either at once, or as soon thereafter as may be practicable, and when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose of which due notice shall be given to the parties or their pleaders. Sub-rule (3) provides that the judgment may be pronounc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s filed by the appellant-auction purchaser challenging the decision of the Deputy Registrar (CS) dated 18-7-2009. The High Court ought to have allowed the writ petition as the Deputy Registrar had no jurisdiction to entertain appeal against the order of confirmation of sale issued under Section 89- A of the Act read with Rule 38 of the Rules; and also because, admittedly, the debtor failed to pay the awarded amount inspite of repeated opportunities given to him from time to time. Moreover, the debtor cannot succeed in the writ petition filed by the auction purchaser and the Bank against the decision of the Deputy Registrar and get higher or further relief in such proceedings. Thus, the Division Bench having finally disposed of the writ appeal ought not to have entertained the application preferred by the debtor in the guise of clarification and to pass any or- der thereon which would enure to the benefit of debtor who is in default, having become functus officio. P.M. Abubakar v State of Karnataka, AIR 2016 SC 5602: 2017 (1) SCC 302 as quoted in M.C. Bachappa v Nagarathnamma, 2018 (2) KCCR 1017: 2018 (2) Kar LJ 150 (Karn). The order was passed by the District Forum by invoking its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... functus officio in the matter and the present order in the proceedings is merely in the process of conveying the directive of formalized abatement. 25. We now would dwell upon the pronouncements of various judicial fora, relevant or relied upon in support of the arguments made and the issue involved in these appeals. ▪ Case Law Analysis 26. Jet Airways (India) Ltd. v. Commissioner of Service Tax, Mumbai-I [Service Tax Appeal No. 86962 of 2014 ors. Final Order Nos. A/86026-86036/2022 dated 19.07.2022 CESTAT, Mumbai] 26.1 In the impugned case, the Resolution Plan was approved by the NCLT vide Order dated 22.06.2021 pursuant to an application filed by one of the financial creditors in terms of Section 7 of the Code and the appellant therein pleaded for non-invocation of Rule 22 of the Rules. The Tribunal had very categorically asserted that: the moment the successor interest with sufficient rights to be represented is appointed by the NCLT this rule will become applicable and it is for the successor interest to make an application for continuance of the proceedings. In the present case no such application has been filed by the successor interest for the continuance of the procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Ghanashyam Mishra Sons Pvt. Ltd. [(2021) 9 SCC 657 (S.C.)] reproduced above, little room remains for a subordinate authority, much less this Tribunal, which indeed is a creature of the statute, to digress and distinguish the specific objectives of the court. 26.4 The said decision of the Tribunal further noted that the C.B.I.C. had also issued SOP laying down guidelines for NCLT cases vide Instruction No. 1083/04/2022-CX9 dated 23.05.2022 on the aspect of claim for refund of pre-deposit and quoted the following paragraphs from the said decision of the Tribunal: 4.7 CBIC has vide Instruction No.1083/04/2022-CX9 dated 23.05.2022 has laid down the guidelines (SOP) for NCLT cases. The said instructions at para-1 and 2 records as follows Subject: Standard Operating Procedure (SOP) for NCLT cases in respect of the Insolvency and bankruptcy Code (IBC) - reg I am directed to inform the Insolvency and Bankruptcy Board of India has requested that role of GST and Customs authorities in certain key issues under the Insolvency and bankruptcy Code, 2016 needs to be formulated. Further, GST and Customs Authorities have been classified as operational creditors and are required to submit their c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the resolution plan in the insolvency proceedings in regard to the corporate debtor, we are of the view that the appeals before this Tribunal are abated. (Emphasis supplied) 27. Jet Airways (India) Limited v. Commissioner of Service Tax-V, Mumbai anor. [Service Tax Appeal No. 86949 of 2015 Final Order No. A/85896-85897/2023 dated 12.05.2023 CESTAT, Mumbai] 27.1 This is yet another case decided by the Tribunal in the case of the said assessee only (as at paragraph 26 above) vide Service Tax Appeal No. 86949 of 2015. Here again, demand of pre-deposit was one of the questions involved, the appeal having abated and the same having been answered by the co-ordinate Bench of this Tribunal in the following manner: 6. Appellant-assessee has also claimed that the refund of pre-deposit to be paid to them at the time of filing the captioned appeal. In this regard, we find that the matter has already been decided by the Hon'ble Supreme Court in the case of Ruchi Soya [2022 (380) ELT 8 (SC)]. The relevant paras of the judgement is extracted as follows: 14. Admittedly, the claim in respect of the demand which is the subject matter of the present proceedings was not lodged by the respondent No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances once the CIRP is initiated and IRP appointed and/or Resolution Plan approved the appeal would require to be abated. While arriving at its findings, the Tribunal referred to a catena of decisions on the subject, clearly holding that it being a creature of the statute, was therefore bound by the statutory provisions and possessed no jurisdiction to travel beyond the express powers vested in it under the statute, while deciding the appeals filed before it against the orders passed by various appropriate authorities. The Tribunal therefore was of the view that any order passed by the Tribunal beyond the powers vested in it would be non-est in law. In arriving at its findings about the issue of applicability of Rule 22 of the CESTAT (Procedure) Rules, 1982 with effect from the date of approval of the Resolution Plan by the NCLT, it referred to a series of authoritative pronouncements and decisions on the subject matter, including the following: Ghanashyam Mishra and Sons Pvt. Ltd. Vs. Edelweiss Asset Reconstruction Company Ltd. [2021 (4) TMI 613 SC] UOI and others Vs. Ruchi Soya Industries Ltd. [2022 (380) ELT 8 (SC)] Ultra Tech Nathdwara Cement Ltd. Vs. Union of India [2020. (37 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by following Section 30(2) and Regulation 38 of the Code. b. The Hon'ble Supreme Court in the case of Ghanashyam Mishra Sons Pvt. Ltd. vs. Edelweiss ARC reported in (2021) 9 SCC 657 at para-102 of the judgement has V categorically held as follows - 102. In the result, we answer the questions framed by us as under: (i) 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; (i) 2019 amendment to Section 31 of the I B Code is clarificatory and declaratory in nature and therefore will be effective from the date on which I B Code has come into effect; (iii) Consequently all the dues ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approach the relevant authorities in the matter. ---------------- 5.1. The appeals filed abate as per the Rule 22 of the CESTAT Procedure Rules, 1982, with effect from the date of the approval of the resolution plan by the NCLT. 5.2. Since the appeals have abated the miscellaneous application filed by the applicant/appellant does not survive. (Emphasis supplied) 29. Ballarpur Industries Ltd. v. Commissioner of Central Excise Service Tax, Panchkula [Service Tax Appeal No. 536 of 2010 Final Order No. 60005/2024 dated 05.01.2024 CESTAT, Chandigarh] 29.1 In the impugned case, the question with regard to non-inclusion and no provision having been made with regard to the said appeal in the Resolution Plan had come up for consideration. The Tribunal after going through the settled case-laws on the subject matter and in particular, referring to the judgement of the Hon ble Apex Court in the case of Ghanashyam Mishra and Sons Pvt. Ltd. v. Edelweiss Asset Reconstruction Company Ltd. Ors. (supra) dated 13.04.2021, adopted the settled position of law as held by the Hon ble Apex Court, reiterated by the Tribunal in the case of Jet Airways (India) Ltd. (supra) vide order dated 12.05.2023. It wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (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; (ii) 2019 amendment to Section 31 of the I B Code is clarificatory and declaratory in nature and therefore will be effective from the date on which I B Code has come into effect; (iii) Consequently all the dues including the statutory dues owed to the Central Government, any State Government or any local authority, if not part of the resolution plan, shall stand extinguished and no proceedings in respect of such dues for the period prior the date on which the Adjudicating Authority grants its approval under Section 31 could be continued. 5. We also find that CBIC has vide Instruction No. 1083/04/2022-CX9 dated 23.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olution Plan has been approved by the NCLT, thereafter, the present appeal stands abated as the CESTAT has become functus officio in the matter relating to the present appeal. 29.2 Therefore, adopting the ratio of the decision cited, it held that once the Resolution Plan is approved by NCLT, the appeal stands abated and the CESTAT becomes functus officio in the matter. 30. To similar ratio is the judgement in a series of cases, including that in the case of Orchid Chemicals Pharmaceuticals Ltd. v. The Commissioner of G.S.T. Central Excise [Service Tax Appeal No. 42474 of 2014 Final Order No. 40066 of 2024 dated 18.01.2024 CESTAT, Chennai] wherein the Tribunal held as under: 3.1 We find that the Mumbai Bench of the CESTAT, in the case of M/s. Jet Airways (India) Ltd. v. Commissioner of Service Tax-V, Mumbai anor. In Final Order No. A/85896-85897/2023 dated 12.05.2023, has referred to an earlier order of the CESTAT in Final Order No. A/86026-86036/2022 dated 19.07.2022 in their own case, referred to the decision of the Hon'ble Apex Court in the case of Ghanashyam Mishra and Sons Pvt. Ltd. v. Edelweiss Asset Reconstruction Company Ltd. Ors. (Civil Appeal No. 8129 of 2019) vide jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the Final Order maintaining or setting aside the order of adjudication. Upon a close reading of the said ratio in law, it is seen that the deposit made in terms of Section 35F of the Central Excise Act, 1944 is inextricably linked for its outcome with that of the Final Order, either maintaining or setting aside the adjudication order/order under challenge. In the present circumstances, however, as stated earlier, there is no such order in the instant case either setting aside or maintaining the same, as the appeal herein simply abates. 32.1 The order of abatement cannot be construed to mean that the issue involved has been decided in favour of the appellant. The question of refund of pre-deposit is a natural corollary to the successful outcome of the appeal. Provisions of Rule 22 are in the nature of an exception where the issues raised in appeal filed are not required to be arbitrated upon and given a decisive pronouncement. To situations concerning insolvency proceedings, the provision of law available is Rule 22 of the CESTAT (Procedure) Rules, 1982, the scope of which has already been discussed in earlier paragraphs and which thereby have rendered the Tribunal functus offici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise, Ranchi ors. [.P.(T) No. 1995 of 2023 vide its judgement dated 05/11.07.2023], after considering several of the pronouncements referred to supra, including that of Ghanashyam Mishra and Sons Pvt. Ltd. v. Edelweiss Asset Reconstruction Company Ltd. [(2021) 9 SCC 657], and was concerned with the question of availment of transitional credit (TRAN-1) wherein the concerned company had undergone liquidation and the current management was not a taxpayer for the impugned period of procurement of inputs or capital goods, but the changed management had felt the need for recovery of such credit, by virtue of the Resolution Plan having been approved, of M/s. Vedanta Ltd. in terms of Section 31(1) of the Code, held as under: 5. Having heard learned counsel for the parties and after going through the averments made in the respective affidavits and the documents annexed therein and the judgments passed by the Hon'ble Apex Court referred to herein above it appears that the Petitioner revised its TRAN- 1 on 30.11.2022 and sought to avail Input Tax Credit amounting to Rs. 92,13,412/- against the 86 invoices of Capital Goods, which were not availed earlier, under Section 140(1) of the CGST Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the earlier period i.e., prior to 17.04.2018 (Annexure-1); the date on which the National Company Law Tribunal has approved the resolution plan of the Petitioner. Hence, the petitioner is not entitled to claim of Rs. 92,13,412/- which has been claimed by the Petitioner as Transitional credit by filing new TRAN-1 in light of the Order passed by Hon'ble Supreme Court in the case of Union of India Vrs. Filco Trade Centre Put. Ltd. being SLP (C) No. 32709-32710/2018. (Emphasis supplied) Viewed in the context, without amplifying, we would like to re-emphasize the obvious position of law that was laid down by the Hon ble High Court. 35. The Hon ble Apex Court, in the context of fastening duty liability against the legal representatives / estate of sole proprietor-deceased manufacturer, in the case of Shabina Abraham v. Collector of Central Excise and Customs [[2015 (322) E.L.T. 372 (S.C.)]], had asserted that it was impermissible to continue with the assessment proceedings in the altered circumstances. It had dwelt extensively into the provisions of Section 4(3)(a) of the Central Excise Act, 1944 regarding the person who is liable to pay duty . The consequence of such an action und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndment. There is no equity about a tax. There is no presumption as to tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used. 33. This Court has, in a plethora of judgments, referred to the aforesaid principles. Suffice it to quote from one of such judgments of this Court in Commissioner of Sales Tax, Uttar Pradesh v. Modi Sugar Mills, 1961 (2) SCR 189 at 198 :- In interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. The Court must look squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed; it cannot imply anything which is not expressed; it cannot import provisions in the statute so as to supply any assumed deficiency. (Emphasis supplied) 36. This Tribunal in a series of cases, some of which are listed hereinbelow, upon proceedings having been initiated and Resolution Plan having been approved, in accordance with the provisions of the Code, repeatedly held the appellate proceedings before it as non-maintainable and accordingly dismissed the appeals as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to the facts and circumstances of the present case. In the case of Ruchi Soya Industries Ltd 2022 (380) ELT 8 (SC), the matter was before the Hon ble Supreme Court against the rejection of a writ of mandamus filed before the Hon ble Karnataka High Court assailing applicability of Notification No. 38/2002-(NT) dated 13.06.2002 to imported crude palm oil. In that context the Hon ble Supreme Court directed refund of the amount collected at the time of admission of appeals pursuant to the resolution plan approved by the NCLT. Similarly, in the GGS infrastructure Private Limited s case, the Hon ble Bombay High Court was approached by filing writ under article 226 claiming relief set out in paragraph 2 of the said order. The Hon ble High Court while allowing the writ petition passed certain direction to be implemented including refund of the amount after adjustment. Also, the Hon ble Karnataka High Court in Ruchi soya Industries Ltd s case, while disposing the writ appeal against the order of the single judge, dismissed the appeal on merit. In none of the above cases, the principle governing the circumstances after abatement of the appeals on fulfilment of conditions under Rule 22 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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