Per V.M. KANADE, J.

Petitioners by this Petition take exception to the order passed by the Assistant Provident

Fund Commissioner and Recovery Officer dated March 3, 2005 whereby he was pleased to direct the petitioners to pay an amount of Rs 6,26,193.55 towards the liability of the petitioners for payment of interest on account of delayed remittances.

Facts:

2. Brief facts which are relevant for the ~ purpose of deciding this Petition are as under:

3. Petitioner No. 1 is a Company incorporated under the Companies Act and the 2nd and 3rd petitioners are Directors of the said 1 Company. Petitioner-Company had employed about 72 workmen in its hotel at Juhu. It is the case of the petitioners that in June 1999 the workmen went on strike and, as a result, the business of the petitioners came to a stand- still and business operations of the Petitioner-Company were completely paralyzed. It is the case of the petitioners that though petitioner Nos. 2 and 3 are the Directors of the said Company, they do not fall within the 21 definition of the term "employer" as defined under the provisions of the Employees' Provident Fund & Miscellaneous Provisions Act, 1952 (For short "EPF Act").

4. The Employees' Provident Fund Commissioner, who is a statutory authority under the provisions of the said EPF Act, initiated proceedings under Section 7-A of the EPF Act with regard to the provident fund 3(claims for the periods from January 1, 1996 to August, 1997, September, 1997 to December, 1998 and January, 1999 to May, 1999. The 2nd respondent passed an order under Section 7-A of the EPF Act dated March 6, 1998 and 35 determined the provident fund dues under Section 7-A along with interest under Section 7 -Q of the said Act for the aforesaid period as an amount payable by the petitioners which was calculated and determined by him as Rs. 40 2,76,724/-. Thereafter, another order was passed for the period from September, 1997 to December, 1998 dated March 29, 1999 in which it was held that the amount payable by the petitioners was Rs. 8,77,009/-. Thereafter, in 45 respect of third period commencing from January, 1999 to May, 1999 he determined the provident fund dues payable by the petitioners as Rs. 3,54,767/-. The total provident fund dues, therefore, came to Rs. 15,08,500/- for the 50 aforesaid three periods. A request was made by the petitioners to the 2nd respondent requesting him that the petitioners may be permitted to pay the amount in installments. Accordingly, the petitioners were permitted to pay the said 5 amount in 36 installments. It is the case of the ~ respondents that the undertaking was given by the petitioners that they would be paying this amount in time without committing any default. It is the case of the petitioners that the entire 110 amount which was due and payable was paid in I installments by the petitioners as permitted by the Central Provident Fund Commissioner.

5. According to the petitioners, after scrutinizing the total payments which were , made, they realized that they made an excess payment of Rs. 86,009/- and, therefore, a letter was written to the respondents requesting them to refund the excess amount.

6. There after, 2nd respondent issued a fresh show cause notice dated December 22, 2004 claiming an amount of Rs. 6 lakhs which was purported to be payable towards interest which was charged under Section 7-Q of the 25 EPF Act. Petitioners informed the respondents that the provident fund dues which were payable to the respondents as per the order passed under Section 7-A and according to the Recovery Certificate which was issued by the 30 respondents had been paid by the Company by the end of December, 2002 and, therefore, no further dues were payable by the Company. It was also contended that the 3rd respondent was not competent to direct interest under Section 358-B of the EPF Act and that interest under Section 7-Q could be levied only by the authority exercising power under section 7-A of the EPF Act at the time