Once a Resolution Plan is approved by the NCLT under the Insolvency and Bankruptcy Code, 2016, all claims not included in the plan are extinguished, and pending appeals before the CESTAT abate as the Tribunal becomes functus officio.

S. S. GARG:

The present appeal is directed against the impugned order dated 25.04.2019 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has set aside the demand for the extended period and demand for the normal period has been upheld.

Briefly the facts of the present case are that the appellants are engaged in the manufacturing of excisable goods falling under Chapter 72 & 73 of the Central Excise Tariff Act, 1985 and are availing the facility of CENVAT credit on inputs, input services and capital goods under CENVAT Credit Rules, 2004. During the audit, it was found that the appellants have wrongly utilized CENVAT credit of Education Cess and Secondary & Higher Education Cess amounting to Rs.20,58,966/- as available on 28.02.2015 for making payment of Central Excise Duty, which was in contravention of the Notification No.12/2015-CE (NT) dated 30.04.2015 and the provisions of Sub Rule 7(b) of Rule 3 of the CCR, 2004. On these allegations a show cause notice was issued and after following the due process, the demand was confirmed along with interest and a penalty of Rs.2,05,897/- was also imposed under Section 11AC. Aggrieved by the said order, the appellants filed appeal before the Commissioner (Appeals), who partly allowed the appeal. Hence, the present appeal.

No one has appeared on behalf of the appellants.

Learned AR for the Department brought to our notice that the appellant has filed a letter dated 01.08.2025 and in that said letter, the appellant has also placed on record the various orders issued by NCLT, New Delhi in the appellant’s own case. Learned AR further submits that in this case, Corporate Insolvency Resolution Process (CIRP), proceedings of the appellant were initiated and after following the due process, the NCLT finally approved the Resolution Plan and the order approving the Resolution Plan has also been placed on record. Learned AR submits that once the Resolution Plan has been approved, the present appeal needs to be abated in view of the law laid down by the Hon’ble Supreme Court in the case of Ghanashyam Mishra & Sons Pvt Ltd vs. Edelweiss Asset Reconstruction Company Ltd & Ors in Civil Appeal No. 8129 of 2019.

After considering the submissions made by the learned AR and perusal of the Resolution Plan, we find that the identical matter has been considered by two coordinate benches of the Tribunal; by Mumbai Bench vide order dated 12.05.2023 in the case of M/s Jet Airways (India) Limited vs. Commr of Service Tax-V, Mumbai [vide Final Order No. 85896-85897/2023 dt 12.05.2023 in Appeal Nos. ST/86949, 87287/2015] and Hyderabad Bench in the case of Icomm Tele Ltd. vs. Commr of Central Tax, Puducherry [vide Final Order No. 30309/2023 dt 06.10.2023 in Appeal No. E/1335/2012]. It is pertinent to refer the findings of Mumbai Bench of the Tribunal in the case of M/s Jet Airways (India) Limited (supra), wherein it was ordered that the appeals stand abated once the Resolution Plan has been approved by NCLT and the CESTAT has become functus officio in the matters relating to this appeal. Relevant findings are reproduced herein below:-

“4. We also find that the matter is no more res integra, as the Hon’ble Supreme Court in Civil Appeal No. 8129 of 2019, in the case of Ghanashyam Mishra and Sons Pvt. Ltd. Vs. Edelweiss Asset Reconstruction Company Ltd. & Ors. vide judgement dated 13.04.2021, had decided the settled position of law, as under:-

“2. The short but important questions, that arise for consideration in this batch of matters, are as under:-

(i) As to whether any creditor including the Central Government, State Government or any local authority is bound by the Resolution plan once it is approved by an adjudicating authority under sub-section (1) of Section 31 of the Insolvency and Bankruptcy Code, 2016 (herein after referred to as ‘I&B Code’)?

(ii) As to whether the amendment to Section 31 by Section 7 of Act 26 of 2019 is clarificatory/ declaratory or