Page 78 - GSTL_18th June 2020_Vol 37_Part 3

292 GST LAW TIMES [ Vol. 37
cial Creditors are given a precedence in the scheme of the Act when the resolu-
tion plan is being finalized and the statutory and operational creditors have to
make a sacrifice. They further contended that the approved resolution plan has
been affirmed by the NCLAT by a well reasoned judgment dated 14-11-2018
passed in Company Appeal (AT) Insolvency No. 188/2018 and thereafter, by
Hon’ble the Supreme Court vide order dated 19-11-2018 passed in Civil Appeal
No. 10998/2018 and thus, the respondents authorities of GST Department had no
jurisdiction to raise demands from the petitioner for the period prior to the date
on which, the petitioner-company took over the company under liquidation i.e.
Binani Cement Ltd. after the resolution plan was finalized and approved.
Learned Counsel for the petitioner pointed out that the Commercial Taxes De-
partment of Govt. of Rajasthan whose claim for a sum of Rs. 479.73 crores was
verified just at Rs. 61.05 crores by the COC, also approached the Hon’ble Su-
preme Court of India against the order of the NCLAT and the appeal preferred
by them being Civil Appeal No. 5889/2019 (Diary No. 1920/2019) has been re-
jected by the Hon’ble Supreme Court vide order dated 26-7-2019. This Court is
apprised that the respondent-Commissioner of Central Goods and Services Tax
and Central Excise Commissionerate, Jodhpur also challenged the order passed
by the NCLAT by filing Civil Appeal Nos. 630-634 of 2020 (Diary No.
21866/2019) before Hon’ble the Supreme Court, which has been dismissed vide
order dated 24-1-2020. The Court’s attention was drawn to the following aver-
ments made in the SLP filed by the Goods and Services Tax Department before
Hon’ble the Supreme Court and it was urged that the judgment of the NCLAT
approving the resolution plan wherein the Government Revenue was curtailed
by Rs. 144.96 crores and was restricted at Rs. 72.85 crores was specifically chal-
lenged by the Department :
“(i) Whether the Hon’ble NCLAT was justified in approving the Resolu-
tion Plan, which is adversely affecting the Government revenue
amounting to Rs. 144.96 crore, without giving any opportunity of
hearing to the department?
(ii) Whether the Hon’ble NCLAT was justified in approving the Resolu-
tion Plan, wherein interest and penalty has been paid till the date of
admission of Insolvency process, whereas as per Central Excise and
Service Tax Laws interest and penalty has to be paid upto the date of
payment of duty?
(iii) Whether the Hon’ble NCLAT was justified in approving the Resolu-
tion plan in which as per -
(a) Para 6.5.2.13 “all litigations instituted against the Corporate
debtor, initiated or arising and pending before the Transfer
date shall stand withdrawn, without any further act, instru-
ment or deed”
(b) Para 6.2.3.5(g) “no amount shall be payable for any liability of
the Corporate debtor towards tax, fee, interest or penalty for
which the assessment in respect of applicable tax laws have
not been completed”.
(c) Para 6.5.6 “other than the discharge of the Resolution amount
towards the liabilities of the financial creditors, the operational
creditors; contingent liabilities and the CIRP costs, no other
payment shall be made by the Corporate debtor for any liabili-
ties of Corporate debtor for the period till the transfer date”.
9. He also referred to the following pertinent prayers made in the SLP
which stands rejected :
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