The Allahabad bench of the Customs, Excise & Service Tax Appellate Tribunal ( CESTAT ) abated the appeal under Rule 22 of the Custom, Excise & Service Tax Appellate Tribunal Procedure Rules, 1982, as no application was made by official liquidator appointed by the National Company Law Tribunal ( NCLT ) in the matter for the continuance of the appeal before tribunal even after expiry of more than five years from the date of the NCLT order.
M/s Moser Baer India Ltd., the appellant challenged the order of the Commissioner of Customs upholding the confirmation of demand of duty of Rs 35,183/- along with interest of Rs 3833/- and set aside the imposition of penalty upon the appellant.
The resolution professional has intimated this Tribunal regarding the commencement of the Corporate Insolvency Resolution Process ( CIRP ) under the provisions of IBC, 2016 in the matter of Moser Baer India Limited.
It was submitted that the COC has resolved by a 100% majority to liquidate the Corporate Debtor as there is no resolution plan. The Committee of Creditors was of the opinion that no resolution plan could be possible, and it is in best interest of all the stake holders that the Corporate Debtor be liquidated and the decision of COC be intimated to the adjudicating authority in terms of the provisions of the code.
The NCLT observed that in the absence of any resolution plan and for want of time beyond statutory CIRP period; there is no other alternative but to order, in conformity with the unanimous decision of the COC, for liquidation of the Corporate Debtor under Section 33 of the Code.
In a result, the application is allowed by ordering the liquidation of the corporate debtor namely Moser Baer India Ltd., in the manner laid down in Chapter III of Part II of the Insolvency and Bankruptcy Code 2016 along with appointing RP as liquidator in terms of Section 34 (1) of the Code.
Further, the Tribunal held that “The Order of Moratorium passed under Section 14 of the Insolvency and Bankruptcy Code, 2016 shall cease to have its effect and that a fresh Moratorium under Section 33 (%) of Insolvency and Bankruptcy Code shall commence; The liquidator shall submit a Preliminary Report to the adjudicating Authority within seventy five days from the liquidation commencement date as per regulation 13 of the Insolvency and Bankruptcy (Liquidation Process) Regulation 2016. “
A two-member bench of Mr P K Choudhary, Member (Judicial) and Mr Sanjiv Srivastava, Member (Technical) observed that undisputedly in terms of the order dated 20.09.2018, the National Company Law Tribunal has directed for winding up of the appellant company and have appointed official liquidator in the matter. No application as per Rule 22, has been made by the official liquidator appointed by the NCLT in the matter for the continuance of the appeal before tribunal even after expiry of more than five years from the date of the NCLT order.
The CESTAT held that “ appeal abates in terms of Rules 22 of Custom, Excise & Service Tax Appellate Tribunal Procedure Rules, 1982. “
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