9911796707
TMI Blog2015 (11) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... from, including the order dated 16.07.2014, whereby charge was ordered to be framed against the petitioner. Notice of motion was issued and therefore, further proceedings before the learned trial Court were stayed. Reply has been filed on behalf of the respondent-State. Learned counsel for the petitioner submits that only alleged irregularity committed by the petitioner, was the alleged non-payment of service tax of Rs. 1,05,705/-. He refers to the official communication dated 26.05.2011 (Annexure P-2) before registration of the impugned FIR, wherein an amount of Rs. 15,440/- which was outstanding against the petitioner, had been paid and nothing remained balance against the petitioner on account of EPF and ESI. He also refers to Annexure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned order of charge (Annexure P-5), by allowing the present petition. On the other hand, learned counsel for the State, on instructions from ASI Shobha Singh, Police Station Manesar, Gurgaon, submits that when the impugned FIR was registered against the petitioner, he was found to have committed an offence under Section 406 IPC, while not depositing the amount of Rs. 1,05,705/- on account of service tax. So far as factum of deposit of said amount by the petitioner vide Annexure P-3 was concerned, learned counsel for the State submits that said fact alone would not absolve the petitioner from his criminal liability. He prays for dismissal of the present petition. After hearing the learned counsel for the parties and after careful pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 76. Penalty for failure to pay service tax. Any person, liable to pay service tax in accordance with the provisions of section 68 or the rules made under this Chapter, who fails to pay such tax, shall pay, in addition to such tax and the interest on that tax amount in accordance with the provisions of section 75, a penalty which shall not be less than two hundred rupees for every day during which such failure continues or at the rate of two per cent of such tax, per month, whichever is higher, starting with the first day after the due date till the date of actual payment of the outstanding amount of service tax: Provided that the total amount of the penalty payable in terms of this section shall not exceed the service tax payable in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... process of Court and the same cannot be sustained. The abovesaid view taken by this Court also finds support from the judgment of the Hon'ble Supreme Court in Jeewan Kumar Raut's case (supra). Relevant observations made by the Hon'ble Supreme Court in paras 15, 16 & 20 of the judgment, which can be gainfully followed in the present case, read as under: - "TOHO being a special statute, Section 4 of the Code, which ordinarily would be applicable for investigation into a cognizable offence or the other provisions, may not be applicable. Section 4 provides for investigation, inquiry, trial, etc. according to the provisions of the Code. Sub-section (2) of Section 4, however, specifically provides that offences under any other law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code and TOHO and as soon as the area of conflict reaches, TOHO shall prevail over the Code. Ordinarily, thus, although in terms of the Code, the respondent upon completion of investigation and upon obtaining remand of the accused from time to time, was required to file a police report, it was precluded from doing so by reason of the provisions contained in Section 22 of TOHO. To put it differently, upon completion of the investigation, an authorized officer could only file a complaint and not a police report, as a specific bar has been created by the Parliament. In that view of the matter, the police report being not a complaint and vice-versa, it was obligatory on the part of the respondent to choose the said method invoking the jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
