Itma Hotels India Private Limited Vs Additional Commissioner of Customs (Kerala High Court)
Kerala High Court held that invocation of the expired bank guarantees by Customs Department is not permissible under the law. Thus, writ petition is allowed.
Facts- The appellant/writ petitioner was under Corporate Insolvency Resolution Process under the Insolvency and Bankruptcy Code, 2016 initiated by the National Company Law Tribunal, Kochi.
The petitioner had for the purpose of running a hotel, imported various capital goods from abroad under the Export Promotion Capital Goods Scheme announced by the Central Government, during the period between April, 2011 to March, 2014. At the time of the imports, the petitioner had furnished 45 Bank Guarantees for various amounts covering the amount of duty against the EPCG authorisations totalling to an amount of Rs.4,14,72,500/-. Since the petitioner was having financial constraints and in view of initiation of the insolvency proceedings, the project never took off and the imported goods were still available at the petitioner’s premises in the packaged condition itself.
On 27.8.2022, 30.8.2022 and 31.8.2022, show cause notices u/s. 28(1) read with 124 of the Customs Act, 1962, were issued to the petitioner. According to the petitioner, since the amounts were due to the financial creditor, the 3rd respondent – State bank of India, an application u/s. 7 of the Insolvency and Bankruptcy Code, 2016 and Interim Resolution Professional was appointed. Customs Department filed their claim before the resolution professional, who rejected the same. After the rejection of the claim, the Customs Department issued a letter dated 11.1.2023 to the Bank to encash the Bank Guarantees which were given by State Bank of India on account of the writ petitioner. Being aggrieved, the present petition is filed.
