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2024 (6) TMI 204 - HC - CustomsRecovery of penalty imposed on company from the former director - liability of former Director - HELD THAT - The Directors of the company cannot be substituted of the company in their individual capacity. There is no provision of the Act for recovery of the penalty imposed from its Directors even the said penalty cannot be recovered from the company. Therefore penalty imposed against the petitioner cannot be enforced as against the petitioner. That apart the petitioner had already resigned from his Directorship as early as on 01.09.2011 and the same was also accepted and Form 32 was also filled and filed with the Registrar of Companies in accordance with the provisions of the Companies Act 1956. The impugned order passed by the 2nd respondent dated 24.12.2021 cannot be sustained and liable to be quashed. The respondents are directed to implement the order dated 24.12.2021 as against others except this petitioner in the manner known to law. Petition allowed.
Issues Involved:
1. Liability of a former director for penalties imposed on the company. 2. Validity of the impugned order dated 24.12.2021. 3. Requirement of notice to the petitioner. Summary: Issue 1: Liability of a Former Director for Penalties Imposed on the Company The petitioner, a former director of M/s. KFPL Drum Private Limited, resigned on 01.09.2011, and his resignation was accepted with Form 32 submitted as per the Companies Act, 1956. The penalty imposed on the company for non-fulfillment of export obligations under the EPCG Scheme arose in 2016 and 2018, well after the petitioner's resignation. The court referenced the judgment in Anita Grover vs Commissioner of Central Excise and Ved Kapoor vs Union of India, which established that directors are not personally liable for company debts unless specified by statutory provisions. The court concluded that the petitioner, having resigned, cannot be held liable for the company's penalties. Issue 2: Validity of the Impugned Order Dated 24.12.2021 The impugned order dated 24.12.2021, which directed the petitioner to remit the penalty amount and pay customs duty with interest, was challenged. The court found that the petitioner was no longer involved in the company's affairs post-resignation and that the penalty could not be enforced against him. The court held that the impugned order could not be sustained and was liable to be quashed. Issue 3: Requirement of Notice to the Petitioner The show cause notice dated 20.02.2020 was issued only to the company, with copies marked to the directors, including the petitioner. The court emphasized that no mandatory notice was served to the petitioner as required u/s 14 of the Foreign Trade (Development and Regulation) Act, 1992. The court cited the necessity of such notice for imposing penalties on individuals, as highlighted in the Ved Kapoor case. Conclusion: The court quashed the impugned order dated 24.12.2021 against the petitioner, directing the respondents to implement the order against others in accordance with the law. The writ petition was allowed, and connected miscellaneous petitions were closed with no costs.
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