Jharkhand High Court
M/S Kohinoor Steel Private ... vs Union Of India Through The Chief ... on 3 February, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(T) No. 917 of 2018
M/s Kohinoor Steel Private Limited through
its authorised Signatory Sri Prabir Ghosh
District Kolkata (West Bengal). .... Petitioner
Versus
1. Union of India through the Chief Commissioner
Central Excise & Service Tax, Patna
2. Commissioner (CGST & CX), Jamshedpur,
District-East Singhbhum (Jharkhand) .... Respondents
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CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh
Hon'ble Mrs. Justice Anubha Rawat Choudhary
Through Video Conferencing
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For the Petitioner : M/s. Nitin Kumar Pasari & Sidhi Jalan, Advs.
For the Respondents : Mr. Amit Kumar, Advocate
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10/03.02.2021 Heard learned counsel for the parties.
2. 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.
3. 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:
"7. 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 [email protected] 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."
4. 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.
5. 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.
6. 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.
(Aparesh Kumar Singh, J.)
(Anubha Rawat Choudhary, J.)
Jk
