D.A.MEHTA - (1.) The petition has been filed praying for following reliefs: To quash and set aside orders dated 01.12.2004 and 27.12.2004 whereby the petitioner is ordered to pay an amount of Rs.2,70,267.00 by the Central Excise Authority.
(2.) To direct the respondent to recover an amount of Rs.2,70,267.00 from the respondent No.2 company To declare that respondent No.1 authority cannot recover an amount of Rs.2,70,267.00 from the petitioner who retired as a director since 1990. To direct respondent No.1 to recover the amount as demanded under order dated 01.12.2004 from respondent No.2 company on the basis of MOU dated 28.06.2001. To grant any other relief that may be deemed just and proper in the matter. The brief facts : On 1st December, 2004 the petitioner was forwarded communication bearing F.No.LEGAL/LMP/CA No.7229-36/832 calling upon the petitioner to pay Rs.10,58,467/- towards excise duty and penalty of Rs.25,000/-. The said communication was followed up with the communication dated 27th December, 2004 (Annexure-C) wherein it was stated that "Out of four Directors, including you, the remaining three Directors namely, S/Shri. Chhotalal, Maganlal and Chandrakant all have accepted their responsibilities and paid each Rs.2,64,617/- of duty amount and paid each Rs.6,250/- of Penalty amount, as part i.e. 25% of total dues. Now on your part i.e. part of Rs.10,58,467/- (Duty) and Rs.25,000/- (Penalty), you are required to pay the duty of Rs.2,64,617/- and penalty of Rs.6250/-.
(3.) You are requested to pay the above dues without further loss of time." It is on the basis of these communications that the present petition has been moved. Mr.Raval, learned advocate appearing on behalf of the petitioner, submitted that the petitioner has retired as a Director of respondent No.2 Company since 1990. It is submitted that after receipt of communication dated 27th December, 2004 (Annexure-C) the petitioner had addressed a letter dated 7th January, 2005 to the Superintendent of Central Excise Range, Bilimora (respondent No.1) calling upon respondent No.1 to furnish details as to how the petitioner was personally responsible, but respondent No.1 has not furnished any reply. In the affidavit-in-reply, sworn by one Mr.Muljibhai Shankerbhai Parmar, Assistant Commissioner of the Central Excise, Division Valsad dated 29th March, 2005, it is stated in Paragraph Nos.4, 5 and 6 as under: "4. I say that since the Order in Original No.99/MP/91 dtd.09.12.1991 passed by the then Collector, Central Excise & Customs, Vadodara has confirmed the demand of Rs. Duty 10,58,467/- (Duty of Rs.3,32,459/- + Duty of Rs.7,26,008/-) against M/s. LMP Drilling and Mining Equipment Co. Pvt. Ltd., Bilimora and since Shri Jayantilal Lallubhai Mistry was one of the directors at the material time in the period for which demand pertains (i.e. 1986 to 1988) and since there were 4(Four) directors of M/s. LMP Drilling and Mining Equipment Co. Pvt. Ltd., Bilimora and since 3(Three) have agreed to pay each "part of duty and penalty, this office has requested Shri Jayantilal Lallubhai Mistry to pay" part of duty of Rs.10,58,467/- i.e. Rs.2,64,617/- and of part of penalty of Rs.25000/- i.e. 6250/-. 5. I say that since all the 4 (Four) brothers i.e. 1. Shri Jayantilal Lallubhai Mistry, 2. Shri Chhotalal Lallubhai Mistry 3.Shri Maganlal Lallubhai Mistry 4. Shri Chandrakant Lallubhai Mistry were directors of M/s. LMP Drilling and Mining Equipment Co. Pvt. Ltd., Bilimora for recovery of Rs.10,58,467/- duty and penalty of Rs.25000/-, the letter were issued to all the 4 (Four) brothers. As a result of which 3 (Three) brothers except Shri Jayantilal Lallubhai Mistry have paid duty and penalty equally amount by issuing cheques and post dated cheques. As regards take over of M/s. LMP Drilling and Mining Equipment Co. Pvt. Ltd., Bilimora by M/s. LMP Precision Engineering Co. Pvt. Ltd., Bilimora is not known to the department. Presently Shri Prakashbhai C. Patel is the Chairman Managing Director of M/s. LMP Precision Engineering Co. Pvt. Ltd., Bilimora. Though Shri Jayantilal Lallubhai Mistry retired as Director in 1990, as stated by him the recovery is pertaining to 1986 to 1988 and as such the letter was issued to him for recovery. 6. I say that as mentioned by Shri Jayantilal Lallubhai Mistry that he retired as director in 1990 and since the recovery pertains to 1986 to 1988, this office issued letter to him to pay duty and penalty.";