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TMI Blog2010 (3) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... amounting to Rs.30,83,065/-(less Rs.2,00,000/- already paid) and 50% of the penalties of Rs.30,83,065/- and Rs.30,00,000/- within eight weeks with compliance report on or before 26th August, 2009. On pre-depositing the said amount within the stipulated period, the balance amounts of Cenvat Credit and the penalties imposed were waived for the purposes of pre-deposit pending consideration of appeal filed by the appellant- petitioner herein. In default, consequences as indicated in the impugned order were to follow. 3. It appears that in compliance with the above order, the petitioners could deposit only Rs.21,00,000/-towards Cenvat Credit liability and could not comply with the order with regard to the penalties. With the result, vide order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iry under section 16 is pending, or any scheme referred to under section 17 is under preparation or consideration or a sanctioned scheme is under implementation or where an appeal under section 25 relating to an industrial company is pending, then, notwithstanding anything contained in the Companies Act, 1956 (1 of 1956) or any other law or the memorandum and articles of association of the industrial company or any other instrument having effect under the said Act or other law, no proceedings for the winding-up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respect thereof and no suit for the recovery of money or for the enforce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h D. Sanghavi v. Union of India & ors.); wherein this Court observed as under: "3. The settled position in law is that liability for duty of the company cannot be fastened upon the director of a company unless there is a statutory provision to that effect. Such an issue came up for consideration before this court in the matter of Sunil Parmeshwar Mittal Versus Dy. C. (Recovery Cell), C.EX, Mumbai-I, wherein the court took a view that liability of members is limited to the extent of face value of shares subscribed by each member and amount remaining unpaid on them for time being, former director of the company cannot be held responsible for payment of liabilities of company in the absence of any specific provision. This was reiterated in un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and set aside and the appeal is liable to be restored to the file of the Tribunal with direction to hear and dispose of the same on its own merits. 10. Per contra, Mr. R. V. Desai, learned senior counsel appearing for the Revenue strongly opposed the aforesaid submission and urged that the central excise duty collected by the petitioners from their customers subsequent to the date of registration of the reference with the Board was recoverable from the petitioners. The amount of central excise collected and payable to the department could not be intended to be within the sweep of section 22 of the SICA. He, therefore, submits that the Tribunal was justified in directing predeposit to the extent of 50% of the duty liability and penalty. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case in hand, the Tribunal has directed pre-deposit of 50% of the duty liability which was quantified in the sum of Rs.28,83,065/- i.e. (Rs.30,83,065 less Rs.2,00,000). The petitioner was, therefore, liable to deposit Rs.14,41,533/- i.e. 50% by way of pre-deposit of Cenvat Credit availed by it. Against this amount the petitioner has already deposited Rs.21 lakh. Therefore this part of the order has been complied with by the petitioners. So far as penalty is concerned, the same was not recoverable from the Company so long as the Company was under the umbrella of section 22 of the SICA. Consequently, the Tribunal was not justified in directing pre-deposit to the extent of 50% of the penalty in its impugned order dated 19th June, 2009. To th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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