Industrial Development Bank of India (Through Stressed Assets Stabilisation Fund Constituted by the Govt. of India) vs Superintendent of Central Excise and Customs

REPORTABLE 2023INSC746 IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

CIVIL APPEAL NO. 2568 OF 2013

INDUSTRIAL DEVELOPMENT BANK OF INDIA (THROUGH STRESSED ASSETS STABILIZATION FUND CONSTITUTED BY THE GOVERNMENT OF INDIA) ..... APPELLANT

VERSUS

SUPERINTENDENT OF CENTRAL EXCISE AND CUSTOMS AND OTHERS ..... RESPONDENTS

JUDGMENT

SANJIV KHANNA, J.

This appeal by Industrial Development Bank of India 1 takes

exception to the judgment dated 26 th August 2008 passed by the

full bench of the Andhra Pradesh High Court in Original Side

Appeal No. 1 of 20052, whereby it has been held that

notwithstanding the winding up order dated 1 st December 2003 in

the case of M/s. Sri Vishnupriya Industries Limited 3, and the

provisions of Section 529A and 530 of the Companies Act, 1956 4, Signature Not Verified Digitally signed by Deepak Guglani Date: 2023.08.18 17:52:12 IST Reason: 1 For short, ‘IDBI’.

2 The Superintendent of Central Excise and Customs v. M/s. Sri Vishnupriya Industries Ltd. (in liqn.) and Others.

3 For short, ‘the Company’.

4 For short, ‘Companies Act’.

Civil Appeal No. 2568 of 2013 Page 1 of 38 the customs authorities have the first right to sell the imported

goods under the Customs Act, 19625 and adjust the sale proceeds

towards payment of customs duty.

2. The Company, during the period 1994-2000, was granted and

availed of financial assistance from the appellant – IDBI. As a

security, the Company had hypothecated movable properties and

created equitable mortgage of immovable properties by depositing

title deeds. The charge was duly registered with the Registrar of

Companies. In addition, the promoters and guarantors had

furnished personal guarantees.

3. In the present case, we are concerned with the hypothecated

movable property, namely, machinery and its components,

imported from Italy during the years 1998-1999. The goods,

packed in 128 wooden containers, were warehoused in a private

bonded warehouse by executing bond in terms of Section 59(1) of

the Customs Act. The goods were initially warehoused for one

year, which period was extended. However, as the goods were not

cleared for home consumption in terms of Section 47 of the

Customs Act, even after expiry of the extended period of

warehousing, show-cause notices were issued 6, and after

considering the explanation given by the Company, orders-in- 5 For short, ‘Customs Act’.

6 Show Cause Notices dated 17th February 2000 and 10th April 2000.

Civil Appeal No. 2568 of 2013 Page 2 of 38 original dated 15th September 20007 and 10th October 20008 were

passed confirming levy of customs duty of Rs.3,27,22,191/- and

Rs.10,48,29,017/-, respectively. When the Company did not pay

the duty, the authorities had passed an order 9 dated 19th

December 2000 for sale of the warehoused goods for recovery of

the customs duty, relying on the powers conferred under Section

72(2) read with Section 142 of the Customs Act. Thereafter,

another order10 under Section 72(2) of the Customs Act was

passed on 27th February 2002 for detention and sale of the

warehoused goods for recovery of Rs.22,20,38,112/-. On failure to

pay the duty, steps were initiated for auctioning the imported

goods and the Company was informed.

4. In the meanwhile, Company Petition No. 168 of 2002 was filed

before the Andhra Pradesh High Court for winding up of the

Company. This petition was admitted on 1 st April 2003. The

Company was directed to be wound up vide the order passed on

1st December 2003. Thereupon, the Official Liquidator filed an

application11 under Section 468 of the Companies Act read with

Rules 9 and 11(b) of the Companies (Court) Rules, 1959 12 for

directing the customs authorities to handover possession of the 7 Order in Original No. 1/2000 (Customs).

8 Order in Original No. 2/2000 (Customs).

9 C. No.VIII/16/1/2000-Adjn. 10 C. No.VIII/72/1/98-Customs. 11 C.A. No. 906/2004. 12 For short, ‘Company Court Rules’.

Civil Appeal No. 2568 of 2013 Page 3 of 38 imported goods, which had been put up for auction for payment of

the customs duty. This application was allowed by a single judge

of the High Court vide the order dated 3 rd September 2004

observing, inter alia, that the customs authorities had not followed

the procedure contemplated under the Customs Act before

passing the order under Section 72 of the Customs Act, in the

absence of which the detention orders were void ab initio and

non-est in the eyes of law. Secondly, on an order of winding up

being passed, in terms of Section 456 of the Companies Act, the

assets of the company in liquidation, by operation of law, vest in

the Official Liquidator, who alone was entitled to deal with the

effects and actionable claims. Reference was also made to

Section 447 of the Companies Act 13. Consequently, as the winding

up order had been passed against the Company but sale was yet

to be effected, the Official Liquidator was duty bound to take into

his custody and control all properties, effects and actionable

claims, including the movable property, that is, the imported

goods. Official Liquidator, as the custodian of all the properties of

the Company, functions under the directions of the Company

Court. Any person making any claim against the Company has to

prove his claim before the Official Liquidator by placing necessary

13 We shall subsequently refer to Sections 456 and 447 of the Companies Act, as these provisions are of relevance.

Civil Appeal No. 2568 of 2013 Page 4 of 38 material in support. Accordingly, the submission regarding the

custom authorities’ entitlement and right under the Customs Act to

sell the imported goods to realise their dues was rejected.

5. On the customs authorities preferring an intra-court appeal, the

mater was referred to the full bench of the Andhra Pradesh High

Court on the question of whether the claim of a secured creditor

has precedence over the right of the customs authorities to

recover the customs duty. The full bench, relying on and approving

the ratio of the Calcutta High Court in Collector of Customs v.

Dytron (India) Ltd.14, disagreed with the view expressed by a full

bench of the Madras High Court in UTI Bank Ltd. v. Deputy

Commissioner of Central Excise and Another 15. The full bench

of the Andhra Pradesh High Court has held that Section 468 16 of

the Companies Act has no application as it empowers the

Company Court to require the ‘contributory’ to pay, deliver,

surrender or transfer any money, property or books and papers in

his custody or control. The word ‘contributory’, defined in Section

428 of the Companies Act, does not include the customs

department/authorities. Observations relying on the ratio in

14 1998 SCC OnLine Cal 674.

15 (2007) 135 Company Cases 329 (Mad.). On the aspect of the Karnataka Land Revenue Act, 1964, see judgment of this Court in Dena Bank v. Bhikhabhai Prabhudas Parekh & Co. and Others, (2000) 5 SCC 694.

16 Section 468 of the Companies Act has been quoted subsequently.

Civil Appeal No. 2568 of 2013 Page 5 of 38 Dytron (India) Ltd. (supra) have been made, a decision which we

would advert to later.

6. Aggrieved, the appellant – IBDI, as a secured creditor, has filed

the present appeal. While issuing notice in the appeal vide order

dated 3rd May 2010, it was directed that status quo shall be

maintained. Thereafter, vide order dated 5th October 2017, the

customs authorities, along with the appellant – IDBI and the

Official Liquidator, were permitted to sell the goods subject to

deposit of the auction sale proceeds with the Registry of this

Court. The sale proceeds vide two demand drafts of Rs.

1,39,34,208/- and Rs. 33,343/- dated 20 th January 2023 have

been deposited in this Court and converted into a fixed deposit

receipt. The auction proceeds are to be paid as per the outcome

of the present appeal.

7. In the context of the present appeal, we would like to reproduce

Sections 529A and 530 of the Companies Act, which read as

under:

“529A. Overriding preferential payments.—(1) Notwithstanding anything contained in any other provision of this Act or any other law for the time being in force, in the winding up of a company,—

(a) workmen's dues; and

Civil Appeal No. 2568 of 2013 Page 6 of 38

(b) debts due to secured creditors to the extent such debts rank under clause (c) of the proviso to sub-

section (1) of Section 529 pari passu with such dues,

shall be paid in priority to all other debts.

(2) The debts payable under clause (a) and clause (b) of sub-section (1) shall be paid in full, unless the assets are insufficient to meet them, in which case they shall abate in equal proportions.”

“530. Preferential payments.—(1) In a winding up, subject to the provisions of Section 529-A, there shall be paid in priority to all other debts—

(a) all revenues, taxes, cesses and rates due from the company to the Central or a State Government or to a local authority at the relevant date as defined in clause

(c) of sub-section (8) and having become due and payable within the twelve months next before that date;

(b) all wages or salary (including wages payable for time or piece work and salary earned wholly or in part by way of commission) of any employee, in respect of services rendered to the company and due for a period not exceeding four months within the twelve months next before the relevant date, subject to the limit specified in sub-section (2);

(c) all accrued holiday remuneration becoming payable to any employee, or in the case of his death to any other person in his right, on the termination of his employment before or by the effect of, the winding up order or resolution;

(d) unless the company is being wound up voluntarily merely for the purposes of reconstruction or of amalgamation with another company, all amounts due, in respect of contributions payable during the twelve months next before the relevant date, by the company as the employer of any persons, under the Employees' State Insurance Act, 1948, (34 of 1948), or any other law for the time being in force;

Civil Appeal No. 2568 of 2013 Page 7 of 38

(e) unless the company is being wound up voluntarily merely for the purposes of reconstruction or of amalgamation with another company, or unless the company has, at the commencement of the winding up, under such a contract with insurers as is mentioned in Section 14 of the Workmen's Compensation Act, 1923, rights capable of being transferred to and vested in the workman, all amounts due in respect of any compensation or liability for compensation under the said Act in respect of the death or disablement of any employee of the company;

(f) all sums due to any employee from a provident fund, a pension fund, a gratuity fund or any other fund for the welfare of the employees, maintained by the company; and

(g) the expenses of any investigation held in pursuance of Section 235 or 237, in so far as they are payable by the company.

(2) The sum to which priority is to be given under clause (b) of sub-section (1), shall not, in the case of any one claimant, exceed such sum as may be notified by the Central Government in the Official Gazette:

(3) Where any compensation under the Workmen's Compensation Act, 1923 (8 of 1923), is a weekly payment, the amount due in respect thereof shall, for the purposes of clause (e) of sub-section (1), be taken to be the amount of the lump sum for which the weekly payment could if redeemable, be redeemed if the employer made an application for that purpose under the said Act.

(4) Where any payment has been made to any employee of a company,—

(i) on account of wages or salary; or

(ii) to him, or in the case of his death, to any other person in his right on account of accrued holiday remuneration, Civil Appeal No. 2568 of 2013 Page 8 of 38 out of money advance by some person for that purpose, the person by whom the money was advanced shall, in a winding up, have a right of priority in respect of the money so advanced and paid, up to the amount by which the sum in respect of which the employee or other person in his right, would have been entitled to priority in the winding up has been diminished by reason of the payment having been made.

(5) The foregoing debts shall—

(a) rank equally among themselves and be paid in full, unless the assets are insufficient to meet them, in which case they shall abate in equal proportions; and

(b) so far as the assets of the company available for payment of general creditors are insufficient to meet them, have priority over the claims of holders of debentures under any floating charge created by the company, and be paid accordingly out of any property comprised in or subject to that charge.

(6) Subject to the retention of such sums as may be necessary for the costs and expenses of the winding up, the foregoing debts shall be discharged forthwith so far as the assets are sufficient to meet them, and in the case of the debts to which priority is given by clause (d) of sub-section (1), formal proof thereof shall not be required except in so far as may be otherwise prescribed.

(7) In the event of a landlord or other person distraining or having distrained on any goods or effects of the company within three months next before the date of a winding up order, the debts to which priority is given by this section shall be a first charge on the goods or effects so distrained on, or the proceeds of the sale thereof:

Provided that, in respect of any money paid under any such charge, the landlord or other person shall have the same rights of priority as the person to whom the payment is made.

Civil Appeal No. 2568 of 2013 Page 9 of 38 (8) For the purposes of this section—

(a) any remuneration in respect of a period of holiday or of absence from work through sickness or other good cause shall be deemed to be wages in respect of services rendered to the company during that period;

(b) the expression “accrued holiday remuneration” includes, in relation to any person, all sums which by virtue either of his contract of employment or of any enactment (including any order made or direction given under any enactment), are payable on account of the remuneration which would, in the ordinary course, have become payable to him in respect of a period of holiday, had his employment with the company continued until he became entitled to be allowed the holiday;

(bb) the expression “employee” does not include a workman; and

(c) the expression “the relevant date” means—

(i) in the case of a company ordered to be wound up compulsorily, the date of the appointment (or first appointment) of a provisional liquidator, or if no such appointment was made, the date of the winding up order, unless in either case the company had commenced to be wound up voluntarily before that date; and

(ii) in any case where sub-clause (i) does not apply, the date of the passing of the resolution for the voluntary winding up of the company.

(9) This section shall not apply in the case of a winding up where the date referred to in sub-section (5) of Section 230 of the Indian Companies Act, 1913 (7 of 1913), occurred before the commencement of this Act, and in such a case, the provisions relating to preferential payments which would have applied if this Act had not been passed, shall be deemed to remain in full force.”

Civil Appeal No. 2568 of 2013 Page 10 of 38

8. Section 529A of the Companies Act, a non-obstante provision, is

to be given primacy in case of conflict, and consequently, in case

of disharmony, this section will override the discordant provisions

of the Companies Act and all other enactments in force. Section

529A of the Companies Act was enforced by Act No. 35 of 1985

with effect from 24th May 1985. Therefore, when there is a clash

and disagreement between section 529A of the Companies Act

and another provision of the Companies Act or any other

enactment in force on 24th May 1985, Section 529A prevails and

the debts are to be paid in terms of Section 529A of the

Companies Act.

9. As per clause (b) of sub-Section (1) to Section 529A of the

Companies Act, the debts due to secured creditors to the extent

such debts under clause (c) of the proviso to sub-Section (1) to

Section 52917 rank pari passu with the workmen’s dues18, are to be

paid in priority to all other debts. Sub-section (2) to Section 529A

states that the debts payable under clauses (a) and (b) of sub-

Section (1) to Section 529A shall be paid in full, unless the assets

are insufficient to meet them, in which case they shall abate in

equal proportions.

17 Clause (c) to the proviso to Section 529 has been quoted subsequently. 18 The expression ‘Workmen’s dues’ in Sections 529, 529A and 530 of the Companies Act is defined and restricted under sub-section (3)(b) to Section 529 of the Companies Act.

Civil Appeal No. 2568 of 2013 Page 11 of 38

10. In the present case, we are not required to examine the inter-play

and principle of proportionality with reference to clauses (a) and

(b) to Section 529A of the Companies Act, albeit we must give full

effect to and enforce the non-obstante nature of Section 529A of

the Companies Act, whereby, notwithstanding anything contained

in any other provision of the Companies Act or any other law for

the time being in force on 24 th May 1985, on winding up of a

company, the debt due to the workmen and the debt due to

secured creditors as specified, rank pari passu and are to be paid

in the manner prescribed therein in priority to all other debts.

11. Section 530 of the Companies Act, which was amended and

substituted by Act No. 35 of 1985 with effect from 24 th May 1985,

states that Section 530 is subject to provisions of Section 529A of

the Companies Act. Section 530 of the Companies Act deals with

preferential payments that are a level below the overriding

preferential payments under Section 529A of the Companies Act.

Clause (a) to Section 530(1) of the Companies Act confers

preferential status to all revenue taxes, cesses, and rates ‘due’ to

the Central or the State government or to a local authority on the

‘relevant date’ as defined in clause (c) to sub-section (8) to

Section 530 of the Companies Act, which have become ‘due and

Civil Appeal No. 2568 of 2013 Page 12 of 38 payable’ within the twelve months next before the relevant date.

The taxes, cesses and rates due to the Central and State

governments or local authorities under Section 530 of the

Companies Act cannot be given priority over the payments/debts

mentioned in Section 529A of the Companies Act. It is, therefore,

beyond debate that the provisions of Section 529A of the

Companies Act prevail over Section 530 of the Companies Act.

12. We shall subsequently interpret the expression debts ‘due’ in the

first portion of clause (a) to Section 530(1) of the Companies Act

and the words ‘become due and payable within the twelve months

next before that date’ in the latter portion of clause (a) to Section

530(1) of the Companies Act, but at this stage, it is relevant to

take on record the ‘relevant date’ as defined in clause (c) to sub-

Section (8) to Section 530 of the Companies Act. As per sub-

clause (i) to clause (c) to sub-Section (8) to Section 530 of the

Companies Act, the ‘relevant date’ in case where a company has

been ordered to be wound up compulsorily, shall be the date of

appointment or first appointment of a provisional liquidator, or if no

such appointment is made, the date of the winding up order,

unless the company had commenced to be wound up voluntarily

before that date. The present case is one of compulsory winding

up and, therefore, the ‘relevant date’, in the absence of

Civil Appeal No. 2568 of 2013 Page 13 of 38 appointment of a provisional liquidator, would be the date on

which the winding up order was passed against the Company,

which is 1st December 200319.

13. Again, before we proceed to interpret the expressions debt ‘due’

and debt ‘due and payable’ in clause (a) to Section 530(1) of the

Companies Act, it is relevant to take note of the effect of Sections

447, 456, 468, 528 and 529 of the Companies Act, as well as the

object and purpose behind these provisions. The relevant sections

read as follows:

“447. Effect of winding up order.— An order for winding up a company shall operate in favour of all the creditors and of all the contributories of the company as if it had been made on all the joint petition of a creditor and of a contributory.”

“456. Custody of company's property—(1) Where a winding up order has been made or where a provisional liquidator has been appointed the liquidator or the provisional liquidator, as the case may be, shall take into his custody or under his control, all the property, effects and actionable claims to which the company is or appears to be entitled.

(1-A) For the purpose of enabling the liquidator or the provisional liquidator, as the case may be, to take into his custody or under his control, any property, effects or actionable claims to which the company is or appears to be entitled, the liquidator or the provisional liquidator, as the case may be, may by writing request the Chief Presidency Magistrate or the District Magistrate within whose jurisdiction such property, effects or actionable claims or any books of account or other documents of the company may be found, to 19 The Official Liquidator was appointed by the High Court vide the order dated 1st December 2003 in Company Petition No. 168 of 2002.

Civil Appeal No. 2568 of 2013 Page 14 of 38 take possession thereof, and the Chief Presidency Magistrate or the District Magistrate may thereupon after such notice as he may think fit to give to any party, take possession of such property, effects, actionable claims books of account or other documents and deliver possession thereof to the liquidator or the provisional liquidator.

(1-B) For the purpose of securing compliance with the provisions of sub-section (1-A), the Chief Presidency Magistrate or the District Magistrate may take or cause to be taken such steps and use or cause to be used such force as may in his opinion be necessary.”

“468. Delivery of property to liquidator.—The Tribunal may, at any time after making a winding up order, require any contributory for the time being on the list of contributories, and any trustee, receiver, banker, agent, officer or other employee of the company, to pay, deliver, surrender or transfer forthwith, or within such time as the Tribunal directs, to the liquidator, any money, property or books and papers in his custody or under his control to which the company is prima facie entitled.”

“528. Debts of all descriptions to be admitted to proof.— In every winding up (subject, in the case of insolvent companies, to the application in accordance with the provisions of this Act of the law of insolvency), all debts payable on a contingency, and all claims against the company, present or future, certain or contingent, ascertained or sounding only in damages, shall be admissible, to proof against the company, a just estimate being made, so far as possible, of the value of such debts or claims as may be subject to any contingency, or may sound only in damages, or for some other reason may not bear a certain value.”

“529. Application of insolvency rules in winding up of insolvent companies.— (1) In the winding up of an insolvent company, the same rules shall prevail and be observed with regard to—

(a) debts provable;

Civil Appeal No. 2568 of 2013 Page 15 of 38

(b) the valuation of annuities and future and contingent liabilities; and

(c) the respective rights of secured and unsecured creditors;

as are in force for the time being under the law of insolvency with respect to the estates of persons adjudged insolvent:

Provided that the security of every secured creditor shall be deemed to be subject to a pari passu charge in favour of the workmen to the extent of the workmen's portion therein, and where a secured creditor, instead of relinquishing his security and proving his debt, opts to realise his security,—

(a) the liquidator shall be entitled to represent the workmen and enforce such charge;

(b) any amount realised by the liquidator by way of enforcement of such charge shall be applied rateably for the discharge of workmen's dues; and

(c) so much of the debt due to such secured creditor as could not be realised by him by virtue of the foregoing provisions of this proviso or the amount of the workmen's portion in his security, whichever is less, shall rank pari passu with the workmen's dues for the purposes of Section 529-A.

(2) All persons who in any such case would be entitled to prove for and receive dividends out of the assets of the company, may come in under the winding up, and make such claims against the company as they respectively are entitled to make by virtue of this section.

Provided that if a secured creditor instead of relinquishing his security and proving for his debt proceeds to realise his security, he shall be liable to pay his portion of the expenses incurred by the liquidator (including a provisional liquidator, if any) for the preservation of the security before its realization by the secured creditor.

Civil Appeal No. 2568 of 2013 Page 16 of 38 Explanation.—For the purposes of this proviso, the portion of expenses incurred by the liquidator for the preservation of a security which the secured creditor shall be liable to pay shall be the whole of the expenses less an amount which bears to such expenses the same proportion as the workmen's portion in relation to the security bears to the value of the security.

(3) For the purposes of this section, Section 529-A and Section 530,—

(a) “workmen”, in relation to a company, means the employees of the company, being workmen within the meaning of the Industrial Disputes Act, 1947;

(b) “workmen's dues”, in relation to a company, means the aggregate of the following sums due from the company to its workmen, namely:—

(i) all wages or salary including wages payable for time or piece work and salary earned wholly or in part by way of commission of any workman, in respect of services rendered to the company and any compensation payable to any workman under any of the provisions of the Industrial Disputes Act, 1947;

(ii) all accrued holiday remuneration becoming payable to any workman, or in the case of his death to any other person in his right, on the termination of his employment before, or by the effect of, the winding up order or resolution;

(iii) unless the company is being wound up voluntarily merely for the purposes of reconstruction or of amalgamation with another company, or unless the company has, at the commencement of the winding up, under such a contract with insurers as is mentioned in Section 14 of the Workmen's Compensation Act, 1923, rights capable of being transferred to and vested in the workman, all amounts due in respect of any compensation or liability for compensation under Civil Appeal No. 2568 of 2013 Page 17 of 38 the said Act in respect of the death or disablement of any workman of the company;

(iv) all sums due to any workman from a provident fund, a pension fund, a gratuity fund or any other fund for the welfare of the workmen, maintained by the company;

(c) “workmen's portion”, in relation to the security of any secured creditor of a company, means the amount which bears to the value of the security the same proportion as the amount of the workmen's dues bears to the aggregate of—

(i) the amount of workmen's dues; and

(ii) the amounts of the debts due to the secured creditors.”

14. As per Section 447 of the Companies Act, an order for winding up

of a company operates in favour of all the creditors as if it had

been made on a joint petition of a creditor. All creditors are treated

as petitioning creditors. Section 456 of the Companies Act

requires a provisional liquidator or a liquidator, as the case may

be, to take all properties and action claims, to which the company

is or appears to be entitled, into his custody or under his control.

Sub-section (1A) to Section 456 of the Companies Act entitles the

liquidator or the provisional liquidator to write a request to the

Chief Presidency Magistrate or the District Magistrate within

whose jurisdiction such property, effects or actionable claims etc.

of the company may be found, and, thereupon, these officers,

Civil Appeal No. 2568 of 2013 Page 18 of 38 after giving notice to the party, are to take possession of the

properties, effects, actionable claims, books of accounts, etc and

deliver the possession to the liquidator or provisional liquidator.

Sub-section (1B) to Section 456 of the Companies Act permits the

Chief Presidency Magistrate or the District Magistrate to take such

steps or use such force, as in his opinion may be necessary.

Section 468 of the Companies Act permits the tribunal/court to

direct any contributory, trustee, receiver, banker, agent, officer or

other employee of the company to pay, deliver, surrender or

transfer forthwith, or within such time as directed, to the liquidator,

any money, property, or books and papers in his custody and

control to which the company is prima facie entitled.

15. Sections 528 to 530 of the Companies Act fall under Chapter V -

‘Provisions Applicable to Every Mode of Winding Up’, under the

sub-heading ‘proof and ranking of claims’. Section 528 of the

Companies Act states that debts of all descriptions, including the

debts payable on contingency, and claims against the company,

present or future, ascertained or sounding only in damages, shall

be admissible to proof against the company, on a just estimate

being made of such debts as far as possible. Section 456 of the

Companies Act, inter alia, provides that all the property and effects

of the Company shall be deemed to be in the custody of the

Civil Appeal No. 2568 of 2013 Page 19 of 38 tribunal/court as from the date of the order for the winding up of

the Company.

16. The objective of giving jurisdiction to the Company Court/tribunal

during the process of liquidation of the Company is two-fold: First,

to ensure that the assets of a company in liquidation are amassed

and constellated to prevent a scramble and dissipation of the

assets of an insolvent company. Secondly, the Company

Court/tribunal is entrusted with paying off debts from the sale

proceeds of the assets so assimilated, according to the waterfall

mechanism provided for and specified under Sections 529, 529A

and 530 of the Companies Act. Accordingly, and with this

objective, Section 529A of the Companies Act refers to the

doctrine of pari passu in the proviso to sub-section (1) to Section

529, with reference to the claims inter se the workmen and the

secured creditors. Even otherwise, on a conspectus of these

sections, the principle applicable and underlying these provisions

is to stop alienation and preserve the assets on the date of the

bankruptcy, which date, in some cases, can relate back to the

date of filing of the winding up petition, as in case of execution of a

decree. This preservation is with a view to ensure the division and

application of the assets of the company being wound up, as it

Civil Appeal No. 2568 of 2013 Page 20 of 38 stood on the relevant date.20 The payment must be made in terms

of the priority prescribed.

17. This Court in J.K. (Bombay) (P) Ltd. v. New Kaiser-I-Hind Spg.

and Wvg. Co. Ltd.21 has held that once a winding up order is

passed, the assets of the company under liquidation are passed

under the control of the liquidator, whose statutory duty is to

realize them. Thereafter, the creditors are paid out by the

liquidator from the sale proceeds of the assets of the liquidated

company. The creditors have to be paid in terms of the waterfall or

priority mechanism. Therefore, payment has to be first made in

terms of Section 529A of the Companies Act to overriding

preferential creditors, then to preferential creditors in terms of

Section 530 of the Companies Act and lastly, payment has to be

made and distributed pari passu among the ordinary or unsecured

creditors. This objective and intent is also apparent when we

examine the Company Court Rules, as per which the liquidator is

to fix a date on or before which all creditors of the company are to

prove their debts or claims and to establish any title they may

have to priority under Section 530 of the Companies Act. 22 Not

only this, the rules enable a creditor to claim interest up to the

date of the winding up order, and in certain circumstances, 20 See – In Re Savin, [1872] L.R. 7 Ch. App. 760, 764. 21 (1970) 40 Comp Cas 689.

22 See – Rule 147, Companies (Court) Rules, 1959.

Civil Appeal No. 2568 of 2013 Page 21 of 38 payment of interest subsequent to the date of winding up. 23 There

is, however, an exception to the two-fold method, as has been

held in Dena Bank v. Bhikhabhai Prabhudas Parekh & Co. and

Others24, which we will subsequently elucidate.

18. This brings us to the interpretation of the expressions debt ‘due’

and debt ‘due and payable’ in Section 530(1)(a) of the Companies

Act. The interpretation is no longer debatable in view of the

judgment of this Court in Rajratha Naranbhai Mills Co. Ltd. v.

Sales Tax Officer, Petlad25, which has approved the view taken

by D.A. Desai, J., in his judgment in Sales Tax Officer, Petlad v.

Rajratna Naranbhai Mills Co. Ltd. and Another26, a judgment,

which, we respectfully submit, forms the foundation of our

reasoning and ratio in the present case. This Court in Rajratha

Naranbhai Mills Co. Ltd. (supra), agreeing with the views

expressed by D.A. Desai, J. in Sales Tax Officer, Petlad (supra),

overruled the judgment of the division bench under challenge, for

several reasons, to hold that the words debt ‘due’ occurring in the

first part and the words debt ‘due and payable’ in the latter part of

Section 530(1)(a) of the Companies Act are different expressions

meant to convey different and not the same meaning. Therefore,

23 See – Rules 156 and 179, Companies (Court) Rules, 1959. 24 (2000) 5 SCC 694.

25 (1991) 3 SCC 283.

26 (1974) 44 Comp Cas 65 (Guj).

Civil Appeal No. 2568 of 2013 Page 22 of 38 for a government debt to be covered under clause (a) to Section

530(1) of the Companies Act, it must not only be a debt ‘due’, but

it must also be a debt ‘due and payable’ within twelve months next

before the relevant date. The requirements of the latter portion of

clause (a) to Section 530(1) of the Companies Act are dual and

cumulative, which is debt ‘due and payable’, and not one that is

‘due’. The debt ‘due’ must have become payable at any time

within twelve months next before the relevant date. The debt ‘due

and payable’ prior to twelve months next to the relevant date is not

a preferential debt in terms of Section 530(1)(a) of the Companies

Act. Such debt will rank pari passu with ordinary or unsecured

creditors, without any preferential treatment. In this regard, we

quote the following passages from the decision of this Court in

Rajratha Naranbhai Mills Co. Ltd. (supra):

“8. We have gone through both the judgments afore- referred to very carefully and minutely and have heard learned counsel on the conflicting decisions. There are wide ranging discussions in the interpretative process relating to the word ‘due’ occurring in the earlier part of the provision and the words ‘due and payable’ in the later part, and whether they are different expressions meant to convey differently or they mean the same thing. With due respect to the High Court, we feel that relevant and important considerations and material though available, which could go to interpret the section purposively was overlooked, and at this juncture we wish to put it to use.

xx xx Xx

Civil Appeal No. 2568 of 2013 Page 23 of 38

11. In A. Ramaiya's The Companies Act (11th edn.

1988) it has been noticed at page 1320 that Section 530 of the Companies Act, 1956 has been largely recast and amended in the light of the following recommendations (excerpted) of the Company Law Committee in paragraph 218 of their Report:

xx xx xx

In this connection we should like to refer to a memorandum that we received from the Central Board of Revenue, on the question of a priority to be given to crown demands generally and, in particular, to arrears of income tax, super tax and corporation tax. It was suggested that there should be no time limit for the preferential payment of these crown debts and that Section 230 of the Indian Companies Act should be amended accordingly. The practical difficulty of giving effect to the suggestion is that it would place a great majority of the unsecured creditors of the company at the mercy of the income tax authorities, inasmuch as, whatever may be the nature of the security on which they may have lent money to a company at the time of the loan, the unforeseeable demands of the income tax authorities on the company without any time limit would rank over the claims of such creditors. In these circumstances, it may be extremely difficult for the company to raise capital for its working... We are aware of the large arrears of income and other taxes which are due by many companies, which are in liquidation, but we would venture to think that the remedy for this unsatisfactory situation is not the conferment of preferential rights without limit to the income tax authorities under Section 230 of the Indian Companies Act, but the energetic completion of assessment proceedings and vigorous measures for the collection of the assessed taxes.

xx xx xx

13. Both benches of the High Court, with due respect, gave to the provision a very wide and varied interpretation and that too on literality and grammaticals seemingly overlooking the legal philosophy which permeates the provision, the same

Civil Appeal No. 2568 of 2013 Page 24 of 38 being that the debts due and payable, so as to claim priority, must be appropriated to the period within 12 months next before the relevant date and their liability for payment must be founded during that period and no other. To put it in simpler words, the State has a priority over debts, liability and obligation of which was born within the time frame of those twelve months and as such due and becoming due and payable within those twelve months next before the relevant date, ascertainable if necessary later, if not already ascertained. We are in respectful agreement with the interpretation put by the Court of Appeal to Section 264 of the English Companies Act in Airedale Garage case, analogous as it is to the provision in hand, warranting the same interpretation; more so when any other interpretation would lead to the results feared by the Company Law Committee extracted above. In such view of the matter, we need not elaborately comment, discuss or demolish, sentence by sentence, the reasoning given by the Single Bench as also the Division Bench of the High Court towards interpreting the provision. The words ‘having become due and payable within 12 months next before the relevant date’ need be understood to mean putting a restriction or cordoning off the amount for which priority is claimable and not in respect of each and every debt on account of taxes, rates and cesses etc. which may be outstanding at that time and payable. And further that such priority is in respect only of debts those of which become due and payable because the liability to those is rooted, founded and belonging to that period of twelve months prior to the relevant date and none other; both the conditions existing.”

19. D.A. Desai, J., in his judgment in Sales Tax Officer, Petlad

(supra) as a judge of Gujarat High Court, had examined the

question of when a debt becomes payable, for this is a

requirement to be satisfied, and only when the debt becomes ‘due

and payable’ during the twelve months next before the relevant

Civil Appeal No. 2568 of 2013 Page 25 of 38 date, does the debt get the character of a preferential debt. After

elaborate discussion, D.A. Desai, J. has held that the debt

becomes ‘due’ under the applicable taxing statute on the date

when the sale, that is, the taxing event takes place. Tax may

become ‘due’ but may be payable in future in terms of the statute.

In the context of the Sales Tax Act in question 27, it was held that

the sales tax became ‘due and payable’ when the returns were

filed. Determination or quantification of the tax at the time of

passing of the assessment order in terms of the Sales Tax Act,

Sales Tax Officer, Petlad (supra) holds, was not relevant. We

need not refer to the Sales Tax Act relevant in Sales Tax Officer,

Petlad (supra) for the purpose of the present case. On the other

hand, we would have to refer to the provisions of the Customs Act

to ascertain the date on which the customs duty in respect of the

goods in question became ‘due and payable’. We are answering

this question, though not necessary, as the appellant – IDBI is an

overriding preferential creditor under Section 529A of the

Companies Act and at best, if the requirements of clause (a) to

Section 530(1) of the Companies Act are satisfied, the customs

dues would fall under Section 530 of the Companies Act and will

be categorized as preferential payment. To decide this question,

we shall also be examining the question of whether the Customs

27 Bombay Sales Tax Act, 1953 and Central Sales Tax Act, 1956.

Civil Appeal No. 2568 of 2013 Page 26 of 38 Act creates a first charge overriding the charge in favour of the

secured creditor, namely, the appellant – IDBI.

20. This Court in Dena Bank (supra), while examining the issue of

priority of government dues or Crown debts over the dues of other

creditors, opined that the Crown's preferential right to recovery of

debts over other creditors is confined to ordinary or unsecured

creditors. The common law principles of equity and good

conscience, as applicable in India and the common law of

England, do not accord the government or Crown dues a

preferential right for recovery of dues or debts over a mortgagee,

pledgee of goods or a secured creditor. The common law doctrine

giving preferential rights to the Crown debts confined to ordinary

or unsecured creditors constitutes ‘law in force’ within the meaning

of Article 372(1) of the Constitution of India, and accordingly, this

law continues to be in force. This Court in Dena Bank (supra)

specifically refers to and approves the statement of law made in

‘Rashbehary Ghose: Law of Mortgage’28 – “It seems a government

debt in India is not entitled to precedence over a prior secured

debt.” This principle also emanates from the decision of the

Constitution bench of this Court in Builders Supply Corporation

v. Union of India and Others29, which was followed by a three

28 TLL, 7th Edn., p. 386.

29 (1965) 2 SCR 289.

Civil Appeal No. 2568 of 2013 Page 27 of 38 judges’ bench in Collector of Aurangabad and Another v.

Central Bank of India and Another30. At the same time, we must

record for clarity that this principle, which vents from the ‘law in

force’ within the meaning of Article 372(1) of the Constitution of

India, must give way to a statutory charge which may be created

by an enactment, whereby a first charge is given to government

dues or Crown debts, notwithstanding the charge of the secured

creditors.

21. Having considered the provisions of the Companies Act, and the

general principles of law, we would now proceed to examine

whether the Customs Act creates a first charge for payment of the

customs dues, and if so, harmonise and resolve the conflict

between the Companies Act and the Customs Act.

22. We would begin by quoting Section 15 of the Customs Act:

“15. Date for determination of rate of duty and tariff valuation of imported goods.—(1) The rate of duty and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force,—

(a) in the case of goods entered for home consumption under Section 46, on the date on which a bill of entry in respect of such goods is presented under that section;

(b) in the case of goods cleared from a warehouse under Section 68, on the date on which a bill of entry

30 (1967) 3 SCR 855.

Civil Appeal No. 2568 of 2013 Page 28 of 38 for home consumption in respect of such goods is presented under that section;

(c) in the case of any other goods, on the date of payment of duty:

Provided that if a bill of entry has been presented before the date of entry inwards of the vessel or the arrival of the aircraft or the vehicle by which the goods are imported, the bill of entry shall be deemed to have been presented on the date of such entry inwards or the arrival, as the case may be.

(2) The provisions of this section shall not apply to baggage and goods imported by post.”

In the present case, upon import of the goods, the Company

had entered the goods for home consumption under Section 46 of

the Customs Act, which reads as under:

“46. Entry of goods on importation.—(1) The importer of any goods, other than goods intended for transit or transhipment, shall make entry thereof by presenting electronically on the customs automated system to the proper officer a bill of entry for home consumption or warehousing in such form and manner as may be prescribed:

Provided that the Principal Commissioner of Customs or Commissioner of Customs may, in cases where it is not feasible to make entry by presenting electronically on the customs automated system, allow an entry to be presented in any other manner:

Provided further that if the importer makes and subscribes to a declaration before the proper officer, to the effect that he is unable for want of full information to furnish all the particulars of the goods required under this sub-section, the proper officer may, pending the production of such information, permit him, previous to the entry thereof : (a) to examine the goods in the presence of an officer of customs, or (b)

Civil Appeal No. 2568 of 2013 Page 29 of 38 to deposit the goods in a public warehouse appointed under Section 57 without warehousing the same.

(2) Save as otherwise permitted by the proper officer, a bill of entry shall include all the goods mentioned in the bill of lading or other receipt given by the carrier to the consignor.

(3) The importer shall present the bill of entry under sub-section (1) before the end of the day (including holidays) preceding the day on which the aircraft or vessel or vehicle carrying the goods arrives at a customs station at which such goods are to be cleared for home consumption or warehousing:

Provided that the Board may, in such cases as it may deem fit, prescribe different time limits for presentation of the bill of entry, which shall not be later than the end of the day of such arrival:

Provided further that] a bill of entry may be presented at any time not exceeding thirty days prior to the expected arrival of the aircraft or vessel or vehicle by which the goods have been shipped for importation into India:

Provided also that where the bill of entry is not presented within the time so specified and the proper officer is satisfied that there was no sufficient cause for such delay, the importer shall pay such charges for late presentation of the bill of entry as may be prescribed.

(4) The importer while presenting a bill of entry shall make and subscribe to a declaration as to the truth of the contents of such bill of entry and shall, in support of such declaration, produce to the proper officer the invoice, if any, and such other documents relating to the imported goods as may be prescribed.

(4-A) The importer who presents a bill of entry shall ensure the following, namely—

(a) the accuracy and completeness of the information given therein;

Civil Appeal No. 2568 of 2013 Page 30 of 38

(b) the authenticity and validity of any document supporting it; and

(c) compliance with the restriction or prohibition, if any, relating to the goods under this Act or under any other law for the time being in force.

(5) If the proper officer is satisfied that the interests of revenue are not prejudicially affected and that there was no fraudulent intention, he may permit substitution of a bill of entry for home consumption for a bill of entry for warehousing or vice versa.”

However, the goods were stored in a private bonded

warehouse, in the terms of Section 68 of the Customs Act, which

reads as follows:

“68. Clearance of warehoused goods for home consumption.—Any warehoused goods may be cleared from the warehouse for home consumption, if —

(a) a bill of entry for home consumption in respect of such goods has been presented in the prescribed form;

(b) the import duty, interest, fine and penalties payable in respect of such goods have been paid; and

(c) an order for clearance of such goods for home consumption has been made by the proper officer:

Provided that the order referred to in clause (c) may also be made electronically through the customs automated system on the basis of risk evaluation through appropriate selection criteria:

Provided further that the owner of any warehoused goods may, at any time before an order for clearance of goods for home consumption has been made in respect of such goods, relinquish his title to the goods

Civil Appeal No. 2568 of 2013 Page 31 of 38 upon payment of penalties that may be payable in respect of the goods and upon such relinquishment, he shall not be liable to pay duty thereon:

Provided also that the owner of any such warehoused goods shall not be allowed to relinquish his title to such goods regarding which an offence appears to have been committed under this Act or any other law for the time being in force.”

The goods were not released on non-payment of customs duty

etc. and, thereupon, show cause notices dated 17 th February 2000

and 10th April 2000 were issued and two adjudication orders dated

15th September 2000 and 10th October 2000 were passed.

23. In a similar factual matrix, a three judges’ bench of this Court in

Commissioner of Customs, Calcutta and Another v. Biecco

Lawrie Ltd.31 had examined the provisions of Section 15 of the

Customs Act, as they then existed, and have opined that clause

(b) to Section 15(1) of the Customs Act will cease to apply when

the requirements under Section 68 of the Customs Act stand

fulfilled and the imported goods are cleared for home

consumption. In the context of the present case, we must hold that

the debt had become ‘due’ in terms of the two adjudication orders

dated 15th September 2000 and 10th October 2000 and ‘payable’

immediately. Thus, the customs duty became ‘due and payable’

prior to twelve months next to the ‘relevant date’; the ‘relevant

31 (2008) 3 SCC 264.

Civil Appeal No. 2568 of 2013 Page 32 of 38 date' being the date of winding up of the Company on 1 st

December 2003. The amount ‘due and payable’ in terms of the

two adjudication orders dated 15th September 2000 and 10th

October 2000 would, therefore, not fall in the category of

preferential payments under clause (a) to Section 530(1) of the

Companies Act.

24. We have also examined Sections 61, 72 and 142 of the Customs

Act32 to consider the question of whether the Customs Act confers

and creates statutory first charge on the customs dues, and are of

the opinion that the sections do not incorporate a statutory first

charge to override the general law, as per the dictum in Dena

Bank (supra). The provisions of the land revenue enactment

applicable in the present case have not been relied upon by the

respondents, in which event, a legal issue relating to conflict of

laws would have arisen and required an answer. The provisions in

the Customs Act do not, in any manner, negate or override the

statutory preference in terms of Section 529A of the Companies

Act, which treats the secured creditors and the workmen’s dues 33

as overriding preferential creditors; and the government dues

limited to debts ‘due and payable’ in the twelve months next

before the relevant date, which are to be treated as preferential

32 These provisions, though relevant, are not being reproduced for the sake of brevity. 33 As defined and payable in terms of Section 529(3)(b) of the Companies Act.

Civil Appeal No. 2568 of 2013 Page 33 of 38 payments under Section 530 of the Companies Act, but are

ranked below overriding preferential payments and have to be

paid after the payment has been made in terms of Section 529

and 529A of the Companies Act. Therefore, the prior secured

creditors are entitled to enforce their charge, notwithstanding the

government dues payable under the Customs Act.

25. The view and the ratio we have expressed is in consonance with

the decision of this Court in Punjab National Bank v. Union of

India and Others34. A similar view has also been expressed by a

three judges’ bench of this Court in Sundaresh Bhatt, Liquidator

of ABG Shipyard v. Central Board of Indirect Taxes and

Customs35, with references to the provisions of the Insolvency

and Bankruptcy Code, 201636 and the Customs Act. In this

context, the three judges’ bench in Sundaresh Bhatt, Liquidator

of ABG Shipyard (supra) has referred to Section 238 of the IBC

to observe that Section 238 of the IBC clearly overrides any

provision of law which is inconsistent with the IBC. This judgment

has also made reference to Section 142A of the Customs Act,

which reads thus:

“142A. Liability under Act to be first charge.— Notwithstanding anything to the contrary contained in any Central Act or State Act, any amount of duty,

34 (2022) 7 SCC 260.

35 (2023) 1 SCC 472.

36 For short, ‘IBC’.

Civil Appeal No. 2568 of 2013 Page 34 of 38 penalty, interest or any other sum payable by an assessee or any other person under this Act, shall, save as otherwise provided in Section 529-A of the Companies Act, 1956 (1 of 1956), the Recovery of Debts Due to Banks and the Financial Institutions Act, 1993 (51 of 1993), the Securitisation and Reconstruction of Financial Assets and the Enforcement of Security Interest Act, 2002 and the Insolvency and Bankruptcy Code, 2016 be the first charge on the property of the assessee or the person, as the case may be.”

Section 142A of the Customs Act was inserted by Act 8 of 2011

with effect from 8th April 2011. It does not apply to the present

litigation. Section 142A of the Customs Act protects and ensures

that the dues under the Customs Act do not, in any way, affect the

rights of third parties under Section 529A of the Companies Act or

rights of the parties as per provisions of the Recovery of Debts

Due to Banks and the Financial Institutions Act, 1993 37, the

Securitisation and Reconstruction of Financial Assets and the

Enforcement of Security Interest Act, 2002 38 and the IBC. Read in

this manner, it is clear to us that the provision of Section 142A of

the Customs Act, insofar as it protects the rights of overriding

preferential creditors governed and covered by Section 529A of

the Companies Act, is clarificatory and declaratory in nature, and

does not lay down a new dictum or confer any new right as far as

the present case is concerned. However, the enactment of section

142A of the Customs Act does confer or create a first charge on 37 For short, ‘RDDBFI Act’.

38 For short, SARFAESI Act’.

Civil Appeal No. 2568 of 2013 Page 35 of 38 the dues ‘payable’ under the Customs Act, notwithstanding

provisions under any Central Act, but not in cases covered under

Section 529A of the Companies Act, RDDBFI Act, SARFAESI Act

and the IBC. Section 142A of the Customs Act, post its enactment,

would dilute the impact of Section 530 of the Companies Act,

which had restricted preferential treatment to government taxes

‘due and payable’ limited to twelve months prior to the ‘relevant

date’, without preferential right for taxes that had become ‘due and

payable’ in the earlier period.

26. In view of our reasoning, we must hold that the decision of the

division bench of the Calcutta High Court in Dytron (India) Ltd.

(supra) does not lay down the correct law and is, accordingly,

overruled. The decision in Dytron (India) Ltd. (supra) was

referred to in Sundaresh Bhatt, Liquidator of ABG Shipyard

(supra), wherein this Court observed that reliance of the National

Company Law Appellate Tribunal on Dytron (India) Ltd. (supra)

was not appropriate as such interpretation has been legislatively

overruled by the inclusion of Section 142A in the Customs Act. We

wish to clarify, as held above, that the decision in Dytron (India)

Ltd. (supra) does not lay down the correct law, as even earlier, the

position in law was that the debt ‘due and payable’, when it falls

within the four corners of clause (a) to Section 530(1) of the

Civil Appeal No. 2568 of 2013 Page 36 of 38 Companies Act, would be treated as preferential payment, but it

would not override and be given preference over the payments of

overriding preferential creditors covered under Section 529A of the

Companies Act.

27. We must also examine the decision of this Court in Imperial Chit

Funds (P) Ltd. v. Income Tax Officer, Ernakulam39, wherein this

Court has interpreted the legal effect of Section 178 of the Income

Tax Act, 196140, which was enacted pursuant to the report of the

Company Law Reforms Committee. On interpretation of Section

178 of the Income Tax Act, it was held that the provision is made

applicable for any tax which is ‘then or is likely to become

payable’, and specifically relates to cases where the company is in

liquidation. Consequently, the amount specified and covered by

Section 178 of the Income Tax Act is protected in view of the non-

obstante clause in sub-section (6) to Section 178 and this amount

has to be set aside. In terms of Section 178 of the Income Tax Act,

the amount set aside will not form a part of the pool of dues to be

distributed among ordinary or unsecured creditors or, for that

matter, as indicated over the overriding or preferential creditors

under Sections 529A and 530 of the Companies Act.

39 (1996) 8 SCC 303.

40 For short, ‘Income Tax Act’.

Civil Appeal No. 2568 of 2013 Page 37 of 38

28. In view of the aforesaid discussion and for the reasons stated, the

present appeal is allowed and the impugned judgment dated 26 th

August 2008 in Original Side Appeal No. 1 of 2005 is set aside.

Company Application No. 906 of 2004 filed by the Official

Liquidator in Company Petition No. 168 of 2002 will be treated as

allowed. The sale proceeds deposited in this Court and converted

into fixed deposit receipts, along with the interest accrued thereon,

will be paid to the Official Liquidator to be distributed in

accordance with the provisions of Sections 529A and 530 of the

Companies Act. There would be no order as to costs.

......................................J. (SANJIV KHANNA)

......................................J. (SUDHANSHU DHULIA)

NEW DELHI;

AUGUST 18, 2023.

Civil Appeal No. 2568 of 2013 Page 38 of 38