NCLAT dismisses customs department plea to auction goods of a firm under moratorium period


New Delhi: The Nationwide Firm Legislation Appellate Tribunal (NCLAT) has dismissed a petition of customs authority searching for public sale of confined items of an organization, which is underneath the company insolvency proceedings, saying the property can’t be alienated throughout a moratorium interval.

Upholding the orders of the Kolkata bench of the Nationwide Firm Legislation Tribunal (NCLT), the appellate tribunal mentioned that after order of ‘moratorium’ is handed by the adjudicating authority (NCLT), the customs division can not challenge public sale discover even though the products in query are mendacity of their possession for years.

A two-member bench headed by Chairman Justice S J Mukhopadhaya mentioned that Insolvency & Chapter Code mandates “during the period of moratorium, the assets of the ‘corporate debtor’ cannot be alienated, transferred or sold to a third party”.

The NCLAT’s order came to visit an attraction filed by the customs division towards an order handed by the NCLT’s Kolkata bench, which had directed Commissioner of Customs, (Preventive) West Bengal, to handover the equipment imported by Ram Sarup Industries Ltd and submit their claims earlier than the decision skilled of the corporate.

Ram Sarup Industries—maker of wires, TMT bars and metal—had imported two consignments of machineries from Italy in April 2009. The evaluation of products have been confirmed by the Assistant Commissioner of Customs, ICD Durgapur, and the Kolkata-based agency was requested to pay obligation of Rs 1.39 crore with relevant curiosity.

 NCLAT dismisses customs department plea to auction goods of a firm under moratorium period

Consultant picture

In 2012, Ram Sarup Industries paid Rs 11 lakh to the customs division after which moved to the excessive court docket of Calcutta towards the departmental motion initiated for disposal of uncleared imported cargo, which was dismissed.

In 2016, the customs division tried thrice to public sale the imported items in query but it surely couldn’t be fructified because it failed to seek out any purchaser.

Later, it granted three months time on February 16, 2017 to Ram Sarup Industries asking to clear the cargo from the custody of the customs authorities after paying the duties.

Commissioner of Customs in August 2017 reinitiated the method for disposal of the uncleared cargo by the use of public sale for the fourth time. In the meantime, the NCLT on eight January 2018, allowed the insolvency plea filed by Ram Sarup Industries moved underneath part 10 of the IBC and declared ‘moratorium’.

On the opposite facet, this time the customs division has discovered a successful bid of the consignment within the public sale carried out on January 19, 2018. Nevertheless, a day after that on January 20, 2018, the division obtained the copy of the letter dated January 16, 2018, despatched by Ram Sarup Industries and one other letter dated January 17, 2018, by the RP of the corporate conveying the NCLT order.

Later, the RP approached the NCLT to remain the public sale course of, which allowed the appliance.

This was challenged by the customs division earlier than the NCLAT contending that company debtor’s possession rights within the imported items have been relinquished by Part 48 of the Customs Act, 1962.

It is usually submitted that Part 48 of the ‘Customs Act’ permits customs authorities to dispose unclaimed, uncleared, non-duty paid imported items after offering the importer with thirty-day discover.


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