Once the Moratorium has been declared Custom Authority cannot sale the imported goods of Corporate Debtor in terms of Section 48 of the Customs Act, 1962 – Commissioner of Customs, (Preventive) West Bengal Vs. Ram Swarup Industries Ltd. & Ors. – NCLAT
In the present case, the goods are in the custody of the Custom Authority, but the ownership remains with the Corporate Debtor, no step having taken for sale of goods in terms of Section 48 of the Customs Act, 1962. As we have seen that the ownership rights of the machineries, in question, is of the ‘Corporate Debtor’ and not of a third party, explanation below Section 18(1)(f) & (g) of the Code is not applicable. Therefore, the Resolution Professional has right to take control and custody of any asset, though the Customs Authority is in possession of the same for the present.
From the Section 14 of Code, it is clear that during the period of Moratorium, the assets of the Corporate Debtor cannot be alienated, transferred or sold to a third party.
Section 48 of the Customs Act, 1962 relates to sale of goods in the custody of the Customs (machinery in question), in the manner as prescribed therein. The order of Moratorium having passed by the Adjudicating Authority on 8th January, 2018, immediately thereafter it was not open to the Appellant, Commissioner of Customs or its authorities to issue an e-auction notice on 15th January, 2018, fixing date of auction of the goods on 19th January, 2018. Officers of the Customs show that after their knowledge of the order of Moratorium they intended to sell the machinery, in question, though it was lying with the Customs Authority since 13th April, 2009 / 27th April, 2009.
In view of the aforesaid findings, no interference is called for against the impugned order dated 3rd July, 2018 passed by the Adjudicating Authority prohibiting the Customs Authority from selling the assets of the Corporate Debtor.
