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Judgment
Heard learned counsel for the parties.
Writ petition was preferred on 19th February, 2018 with the following prayers:
a) For issuance of an appropriate writ, order or direction, directing upon the Respondents to show cause as to how, the consumption of coal when
declared in the Returns (Monthly & Annually) and on the basis of which central excise duty has been paid on the final product, how on presumption
the duty is sought to be levied on the basis of an audit objection raised by Central Excise & Revenue Audit (CERA) for the period 2009-2010 to 2013-
2014.
b) For issuance of an appropriate writ, order or direction, directing upon the Respondents to show cause as to, if at all, the consumption of coal in the
Captive Power Plant is also subjected to Excise Duty.
c) Consequent upon showing cause if any, and on being satisfied that the issuance of show cause notice viz, C.No. V(72)
(15)04/APP/ADJ/JSR/2016/1024 Dated 02.02.2016 for the period 2009-2010 to 2012-2013 and show cause notice No. C.No.V (72)31/Adj/Kohinoor
Steel/Tech/JSR-IV/2013/2009 dated 18.11.2016 (Annexure-2) has been raised on presumption on the basis of input output ratio of coal consumption,
which is otherwise not permissible under the Act having no reasonable basis far less any legal justification and as such is liable to be quashed.
d) Further, this Hon'ble Court be pleased to set aside the Order in Original No. 67-68/Comm./2007 dated 27.10.2017 (Annexure-6) passed by the Ld.
Commissioner (Respondent no. 2) received by the Petitioner on 21.11.2017, by which duty, penalty & interest has been imposed upon the Petitioner.
e) For issuance of any other appropriate writ(S)/order(S)/direction(S) as Your Lordships may deem fit and proper in the facts and circumstances of
the case for dong justice to the petitioner.
A supplementary affidavit has been filed by the Interim Resolution Professional on 18th January, 2021. It has been brought to the notice of this
Court that the company has gone into insolvency proceedings before the National Company Law Tribunal, Kolkata Bench on the application of one
Operational Creditor M/s. Rahul Carbon Commercial Private Limited. By order dated 20th November, 2019 (Annexure-1 to the supplementary
affidavit) Interim Resolution Professional has been appointed. The operative part of the order reads as under:
In view of the above discussion, we admit the application and order as under: - i. The application filed by the Operational Creditor under section 9
of the Insolvency & Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process against the Corporate Debtor, Kohinoor Steel
Private is hereby admitted.
ii. We declare a moratorium and public announcement in accordance with Sections 13 and 15 of the IBC, 2016.
iii. Moratorium is declared for the purposes referred to in Section 14 of the Insolvency & Bankruptcy Code, 2016. The IRP shall cause a public
announcement of the initiation of Corporate Insolvency Resolution Process and call for the submission of claims under Section 15. The public
announcement referred to in clause (b) of sub-section (1) of Section 15 of Insolvency & Bankruptcy Code, 2016 shall be made immediately.
iv. Moratorium under Section 14 of the Insolvency & Bankruptcy Code, 2016 prohibits the following:
a) The institution of suits or continuation of pending sits 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 interest therein;
c) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action
under the Securitization and reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002);
d) The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. v. The supply
of essential goods or services to the corporate debtor as may be specified shall not be terminated, suspended, or interrupted during moratorium period.
vi. The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any
financial sector regulator.
vii. The order of moratorium shall have effect from the date of admission till the completion of the corporate insolvency resolution process. viii.
Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan
under sub-section (1) of Section 31 or passes an order for liquidation of corporate debtor under Section 33, the moratorium shall cease to have effect
from the date of such approval or liquidation order, as the case may be. ix. Necessary public announcement as per Section 15 of the IBC, 2016 may
be made. x. Shri Ashok Kumar Sarawagi, IP Registration No. IBBI/IPA-001/IPP00171/2017- 18/10340 email id sarawagiashok@gmail.com is
appointed as Interim Resolution Professional for ascertaining the particulars of creditors and convening a Committee of Creditors for evolving a
resolution plan. xi. The Operational Creditor to pay a sum of Rs. 1,00,000/- (Rupees One lakh only) to IRP as advance fee as per Regulation 33(2) of
IBBI (Insolvency Resolution Process for Corporate Persons) Regulation 2016 which shall be adjusted from final bill. In case further funds are
required during Corporate Insolvency Resolution Process and, if not provided by Committee of Creditors, then IRP/RP can approach this Tribunal for
that purpose.
xii. The Resolution Professional shall conduct CIRP in time bound manner as per Regulation 40A of IBBI (Insolvency Resolution Process for
Corporate Persons) Regulation, 2016.
xii. Registry is hereby directed under section 9(5) of the I.B.Code, 2016 to communicate the order to the Operational Creditor, the Corporate Debtor
and to the I.R.P. by Speed Post as well as through e-mail.
Learned counsel for the petitioner fairly submits that on account of the moratorium declared under Section 14 of the Insolvency & Bankruptcy
Code, 2016, the writ petition cannot be pursued any further at this stage. At the end of the Corporate Insolvency Resolution Process, the Adjudicating
Authority may approve the resolution plan under sub-section (1) of Section 31 or passes an order for liquidation of corporate debtor under Section 33.
The moratorium shall cease to have effect to the date of such approval or liquidation order, as the case may be.
Learned counsel for the Respondent-Central Excise and Service Tax Department submits that the department has also raised its claim before the
Interim Resolution Professional in the instant resolution process.
Upon hearing learned counsel for the parties and taking note of the Insolvency Resolution Process underway against this company and the
moratorium on continuation of any pending proceedings under Section 14 of the of the Insolvency & Bankruptcy Code, 2016, the present writ petition
cannot be entertained. It is disposed of as such.