1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 18 OF 2010 Mr.Ashokkumar H.Fulwadhya, Director of M/s.Harisons Steel Pvt.Ltd. ... Petitioner. V/s. The Union of India and others. ... Respondents. WITH WRIT PETITION NO. 53 OF 2010 Mr.Daulatkumar H.Fulwadhya, Director of M/s.Harisons Steel Pvt.Ltd. ... Petitioner. V/s. The Union of India and others. ... Respondents. H.G.Dharmadhikari for the petitioners. R.V.Desai, senior counsel with R.B.Pardeshi for the respondents. CORAM : V.C.DAGA AND K.K.TATED, JJ. DATED : 19th January 2010. JUDGMENT : (Per V.C.Daga, J.) Heard learned counsel for the petitioners and learned counsel for the respondents. Perused petitions. 2. Rule, returnable forthwith. Petitions are heard finally by consent of parties. 2 The Facts : 3. These petitions are directed against the order dated 4th August, 2009 by the Customs Excise & Service Tax Appellate Tribunal, West Zonal Bench, Mumbai ( CESTAT for short) directing the petitioners Mr.Ashokkumar and Mr.Daulatkumar to pre-deposit 25% of the penalty imposed on each of them, they being the directors of M/s.Harisons Steel Pvt.Ltd. Submissions : 4. Learned counsel for the petitioners, in short, submits that imposition of personal penalty on the director is not permissible under rule 13(1) of Cenvat Credit Rules, 2002 ( Cenvat Rules for short) as this rule contemplates penalty only on the person availing credit. In the case in hand, person, who has availed Cenvat credit, is a private limited company and not the directors of the company. The petitioners are the directors, who did not avail this credit. In the submission of learned counsel, in spite of this clear legal position, the Tribunal erroneously without considering the contention raised in this behalf, has passed the impugned order directing the petitioners to pre-deposit 25% of the penalty imposed on each of them. 5. Per contra, Mr.Desai, learned senior counsel appearing for the respondents tried to counter the above submissions but could not take his submission to the logical end and found it difficult to support the impugned order. 3 Consideration : 6. In order to appreciate the submissions canvassed by learned counsel appearing for the petitioners, it would be profitable to turn to rule 13 of the Cenvat Rules applicable to the facts of the case in hand: RULE 13. Confiscation and penalty.- (1) If any person, takes CENVAT credit in respect of inputs or capital goods, wrongly or without taking reasonable steps to ensure that appropriate duty on the said inputs or capital goods has been paid as indicated in the document accompanying the inputs or capital goods specified in rule 7, or contravenes any of the provisions of these rules in respect of any inputs or capital goods, then, all such goods shall be liable to confiscation and such person, shall be liable to be penalty not exceeding the duty on the excisable goods in respect of which any contravention has been committed, or ten thousand rupees, whichever is greater. (Emphasis supplied.) 7. The aforesaid rule opens with the wording If any person, takes CENVAT credit ..... These words are indicative of the fact that the penalty is imposable on the person who takes Cenvat credit. In other words, the person who has availed CENVAT credit is the only person liable to be visited with the penalty. None of the petitioners has availed CENVAT credit. It is availed by the Company alone; where the petitioners are directors. Therefore, the penalty under rule 13(1) of the Cenvat Rules is imposable only on the person who has availed Cenvat credit i.e. on the Company, who is a manufacturer. The petitioners cannot be said to be manufactures 4 availing Cenvat credit. They are the directors of the private limited company as such they could not have been within the net of rule 13 of the Cenvat Rules. 8. In Union of India v. M/s.R.B.Shreeram Durga Prasad (P) Ltd. and ors., 1969 (2) SCR 727, the Apex Court ruled that a penal provision has to be construed strictly. Considered in this backdrop, in absence of specific words, no person other than the person taking Cenvat credit can be inferred. The relevant provisions of the Central Excise Act, 1944 ( Act for short) show that wherever Legislature desired to include any other person or agent, a specific language in that behalf is used. One of such readily referable provision could be proviso to sub-section of section 11A, which reads as under: 11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. (1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, whether or not such non-levy or non-payment, short-levy or short- payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation thereunder, a Central Excise Officer may, within one year from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice: Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any willful mis-statement or suppression of 5 facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, as if for the words one year , the words five years were substituted; (Emphasis supplied) 9. Perusal of the aforesaid proviso would demonstrate that even the agent is brought within the purview of the legislative net. In contrast to the above, rule 13 of the Cenvat Rules brings within its fold only that person who takes Cenvat credit and no other person. 10. On the above analysis of rule 13 of the Cenvat Rules, we have no option but to quash and set aside the impugned order holding that no pre-deposit of personal penalty could be ordered against the petitioners. The Tribunal shall hear the appeal filed by the petitioners without there being pre-deposit by the petitioners. 11. In the result, both petitions are allowed. Rule is made absolute in terms of this order with no order as to costs. (K.K.TATED, J.) (V.C.DAGA J.)