Hans Colour Lab and Studio Vs. Union of India (Uoi) - Court Judgment

Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect -.....orderr.m. lodha, j.1. rule. returnable forthwith. mr kamlakar sharma, assistant solicitor general waives service for the respondents. keeping in view the controversy raised in the writ petition, we dispose of the matter finally at this stage.pursuant to the show cause notice dated 5-9-2006 for short paid service tax, after hearing the petitioner, the order came to be passed by the assistant commissioner, central excise department, alwar directing the petitioner to deposit service tax amounting to rs. 2,75,042/- for being not entitled to the benefit of notification dated 1-3-2005. the assistant commissioner imposed penalty of rs. 2,75,042/- under section 76 of the finance act, 1994 and also imposed the penalty in the same amount under section 78 of that act. the assistant commissioner also.....

Judgment:
ORDER

R.M. Lodha, J.

1. Rule. Returnable forthwith. Mr Kamlakar Sharma, Assistant Solicitor General waives service for the respondents. Keeping in view the controversy raised in the writ petition, we dispose of the matter finally at this stage.

Pursuant to the show cause notice dated 5-9-2006 for short paid service tax, after hearing the petitioner, the order came to be passed by the Assistant Commissioner, Central Excise Department, Alwar directing the petitioner to deposit service tax amounting to Rs. 2,75,042/- for being not entitled to the benefit of Notification dated 1-3-2005. The Assistant Commissioner imposed penalty of Rs. 2,75,042/- under Section 76 of the Finance Act, 1994 and also imposed the penalty in the same amount under Section 78 of that Act. The Assistant Commissioner also imposed a penalty of Rs. 1,000/- under Section 77 of the Act as it failed to submit ST-3 return.

2. Aggrieved by the order of the Assistant Commissioner passed on 29-5-2007, the appeal was preferred by the petitioner to the Commissioner of Central Excise (Appeals). The petitioner also applied for waiver of pre-deposit and for stay of the operation of the order passed by the Assistant Commissioner.

3. The Commissioner (Appeals), Central Excise vide its order dated 8-10-2007 directed the petitioner to deposit a sum of Rs. 2,75,042/- by 22-3-2007, failing which it was observed that the appeal would stand rejected for want of compliance. The petitioner did not comply with the order dated 8-10-2007 and on the other hand challenged the legality and correctness thereof by filing this writ petition.

4. Having considered the entire matter after hearing the parties, we are of the view that the petitioner had been able to make out a case for partial waiver of pre-deposit. It is not that the petitioner has no case at all in the appeal. As regards the financial condition, the counsel for the petitioner placed before us the petitioner's balance sheet of the year 2005-2006 which shows liabilities and assets thus:

M/s. Hans Colour LabManni Ka Bar, Church Road, AlwarDate 1-4-2005 to 31-3-2006Balance Sheet year 2005-2006Liabilities Sch Amount Assets Sch AmountShri Ganesh Ji Ma- 11.00 Fixed Assets D 527801.00HarajProperitors Capital A 393374.32 Sundry Debtors E 26112.88A/xUnsecured Loans B 627000.00 Closing Stock F 434938.45Sundry Creditors C 45974.40 Cash & Bank Balance G 65507.39Loan & Advance Se- 12000.00curity Security RSEBAlwar____________ ____________Total 1066359.72 1066359.72____________ ____________

5. It, thus, appears that petitioner has a small colour laboratory and by asking it to deposit the amount of Rs. 2,75,042/-, its right of having the correctness of the order passed by the Assistant Commissioner examined by the appellate authority would be lost. We are, thus, satisfied that 50% of the amount of Rs. 2,75,042/- deserves to be waived. Consequently, we dispose of this writ petition by the following order:

(i) Subject to petitioner's depositing an amount of Rs. 1,37,521/- with the Commissioner of Appeals-I within two weeks from today, the order dated 26-10-2007 passed in appeal No. 189/(RKS)ST/JPR-I/07 shall stand set aside and appeal would be restored to the file of Commissioner (Appeals-I), Customs and Central Excise, Jaipur.

(ii) The order dated 8-10-2007 also stands modified in terms of afore-stated.

(iii) On the other hand, if the deposit in the sum of Rs. 1,37,521/- is not made by the petitioner within the afore-stated time, the orders dated 8-10-2007 and 26-10-2007 shall stand as it is.

6. No costs.