2024-VIL-389-CESTAT-KOL-CE
  1. Home
  2. 2024-VIL-389-CESTAT-KOL-CE

CENTRAL EXCISE CESTAT Cases

Central Excise - Refund of pre-deposit - Abatement of proceedings - Rule 22 of the CESTAT (Procedure) Rules, 1982 - Initiation of insolvency proceedings under the provisions of the Insolvency and Bankruptcy Code, 2016 during pendency of appeal – approval of Resolution Plan by NCLT – Whether the present appeals abate and the Tribunal, having become functus officio, would thus not be in a position to give any directions in the matter or any further direction to be issued with regard to deposits made by the erstwhile appellants under Section 35F of the Central Excise Act, 1944 – Appellant of the view that in the present case, liquidation process had not been resorted to and it is not a case of winding up of the existing company and therefore, Rule 22 of the CESTAT (Procedure) Rules, 1982 has no application - Difference between ‘liquidation’ and ‘winding up’ - HELD - once the CIRP process is set out, all pending disputes are given a go-by and what occupies the centre stage is the moratorium declaration and its public announcement. Further, the moment the Resolution Plan is approved in terms of Section 31 of the Code or a moratorium is issued in terms of Section 14 of the Code, the said provisions of the code become applicable statutorily - in the context of Rule 22, the terms ‘liquidation’ and ‘winding up’ have been used rather loosely, though resulting in the same implied consequence - 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 made out - ‘winding up’ is the process of settling of accounts and liquidating assets in anticipation of the dissolution of a corporation whereas ‘liquidation’ can be construed as the process of ascertaining the liabilities and distribution of the assets particularly in bankruptcy or dissolution. In other words, liquidation is largely a process of winding up - whether pre-deposit is in the nature of a security deposit or otherwise, does not arise for consideration in the present matter in view of the fact that the Tribunal being a creature of the statute, is bound by the provisions of the statute and the appeals abating under the given circumstances renders the Tribunal as functus officio - 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, to situations concerning insolvency proceedings, no such order can be passed by the Tribunal in view of the existing provisions in law - Having in depth analysed the legal position and case-laws in extenso, 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., the SOP prescribed by the CBIC dated 23.05.2022 and the Resolution Plan as approved by the NCLT, the present appeals abate. With the abatement of the appeals, the Tribunal is rendered functus officio in matters relating to these appeals - Moreover, the impugned Orders-in-Original get merged with the order of the NCLT, approving the Resolution Plan - the present appeals abate with effect from the date of approval of the Resolution Plan by the NCLT – Ordered accordingly
Download File
show more Judgements  

Quick Search

/

Advance Search

GST Resources

/

Gst Rate Finder

Tax Vista

Your Weekly Tax Recap

By Dr. G. Gokul Kishore

Weekly Summary

VIL Video

Income Tax Deductors/Collectors...
CA Vivek Jalan

Create Account

Security-Code
New Code?

Log In

New User ? Forgot Password ?

Forgot Password

Security-Code
New Code?
Please Note: This facility is only for Subscribing Members.

Email this page

Feedback this page

Schedule a Demo

Schedule a demo to know the features and advantages of VILGST portal. Get to know the tips to find the desired results in faster way.

Caselaw Request Form (CRF)

Didn’t find what you are searching for? No worries, please give us the following details and VIL will email you the desired Caselaws at the earliest:

Security-Code
New Code?