CBIC cannot initiate recovery of dues: Supreme Court of India

In India, when the corporate insolvency process commences, the adjudicating authority is mandated to declare a moratorium on continuation or initiation of any coercive legal action against the Corporate Debtor. Even if a company goes into liquidation, a moratorium continues in terms of Section 33(5) of the IBC.

Section 14 of the IBC ( Insolvency and Bankruptcy code, 2016) prescribes a moratorium on the initiation of CIRP proceedings and its effects. One of the purposes of the moratorium is to keep the assets of the Corporate Debtor together during the insolvency resolution process and to facilitate orderly completion of the processes envisaged under the statute. Such measures ensure the curtailing of parallel proceedings and reduce the possibility of conflicting outcomes in the process. Further, one of the motivations of imposing a moratorium is for Section 14(1)(a), (b), and (c) of the IBC to form a shield that protects pecuniary attacks against the Corporate Debtor. This is done in order to provide the Corporate Debtor with breathing space, to allow it to continue as a going concern and rehabilitate itself.

In Sundresh Bhat v. Central Board of Indirect Taxes and Customs, 2022 SCC OnLine SC 1101, decided on 26.08.2022. the Supreme court ruled that “The Customs Act and the IBC act in their own spheres. In case of any conflict, the IBC overrides the Customs Act.

IT has held that the Insolvency and Bankruptcy Code, 2016 (IBC) would prevail over the Customs Act, 1962 to the extent that once moratorium is imposed in terms of Sections 14 or 33(5) of the IBC as the case may be, the Central Board of Indirect Taxes and Customs (CBIC) only has a limited jurisdiction to assess/determine the quantum of customs duty and other levies as it does not have the power to initiate recovery of dues by means of sale/confiscation, as provided under the Customs Act.

The Court, hence, observed that any contrary interpretation would crack this shield and would have adverse consequences on the objective sought to be achieved.

The Court, further, explained that, the IBC, being the more recent statute, clearly overrides the Customs Act. Section 142A of the Customs Act notes that the Custom Authorities would have first charge on the assets of an assessee under the Customs Act, except with respect to cases under Section 529A of Companies Act 1956, Recovery of Debts Due to Banks and Financial Institutions Act 1993, Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and the IBC, 2016. This exception created under the Customs Act is duly acknowledged under Section 238 of the IBC as well.  Section 238 of the IBC clearly overrides any provision of law which is inconsistent with the IBC. It was, hence, held that,

On the scope of power of CBIC, the Court held that CBIC can only initiate assessment or re-assessment of the duties and other levies. They cannot transgress such boundary and proceed to initiate recovery in violation of Sections 14 or 33(5) of the IBC. The interim resolution professional, resolution professional or the liquidator, as the case may be, has an obligation to ensure that assessment is legal and he has been provided with sufficient power to question any assessment, if he finds the same to be excessive.

The Court also took note of the fact that issuing a notice under Section 72 of the Customs Act for non-payment of customs duty falls squarely within the ambit of initiating legal proceedings against a Corporate Debtor. Even under the liquidation process, the liquidator is given the responsibility to secure assets and goods of the Corporate Debtor under Section 35(1)(b) of IBC. On the other hand, the authorities under the Customs Act have a limited jurisdiction to determine the quantum of operational debt in order to stake claim in terms of Section 53 of the IBC before the liquidator. CBIC does not have the power to execute its claim beyond the ambit of Section 53 of the IBC.

Attribution: https://www.scconline.com/blog/

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