The Mumbai Bench of the Customs, Excise and Service Tax Appellate Tribunal ( CESTAT ), held that no claim of refund can be allowed when appeal has already been abated.
In the instant case the Resolution Plan was approved by the NCLT and certain clarifications in some paragraphs of the order were also made by the NCLT.
The Counsel for the appellant, submitted that the Resolution Plan for the appellant company, M/s. Murli Industries Ltd was approved by learned National Company Law Tribunal and hence in view of the above approval no demand in the present case survives and also prayed for refund of pre-deposit of the amount.
The Counsel appearing for the Revenue, submitted that the instant appeal of the appellant becomes infructuous and liable to be abated in terms of Rule 22 of CESTAT (Procedure) Rules, 1982 and further submits that the Resolution Plan submitted by M/s. Dalmia Cement Ltd. was accepted by the NCLT and therefore the appellant herein has ceased to exist as soon as the plan is accepted by the NCLT and since thereafter M/s. Dalmia Cement is only authorised to file continuance application under Rule 22 which has not been filed by them therefore the appeal of Murali Industries abated.
A Single Bench consisting of Ajay Sharma, Judicial Member held that “I am of the view that the appeal filed by the appellant herein has become infructuous and abated in terms of Rule 22 of CESTAT (Procedure) Rules, 1982. As the appeal has already been abated therefore in my considered view the appellant cannot claim any refund before this Tribunal of any pre-deposit made by them before the Commissioner (Appeals), as the power which Supreme Court/High Courts can exercise are not available with this Tribunal.”
Rajesh Ostwal, appeared for the appellant and P.K. Acharya, Superintendent (AR) appeared for the respondent.
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