TMI Blog2017 (5) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... medy of appeal against the order-inoriginal is available by section 35-B, namely Appeal to the Appellate Tribunal. By a further provision and incorporated in the statute, namely, section 35-F, the Tribunal or the Commissioner (Appeals), as the case may be, are mandated not to entertain any appeal. There is no financial hardship of such nature to hold that the statute imposes a excessive or onerous condition so as to avail of the right of appeal. Pertinently, neither the provisions are challenged nor the stipulation as aforesaid. The writ petition is filed only on the ground that it is not possible for the Board to arrange for the predeposit. This is not enough to entertain this petition. Petition dismissed - decided against petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Welfare) Scheme, 2002 has also been framed under Section 3(1) of the parent Act. The Board is a tripartite body, consisting of representatives from registered employers, the security guards and the State Government. The Act styled as Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981 applied to hired persons who worked as security guards in any factory or establishment through agencies but it did not apply to persons/employees who were direct and regular employees of the factory or establishment. 3. After referring to the Act and the scheme in great details, the show cause notices proceed to allege that the amount has been calculated because the Board renders services. The services are referable to a st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard vs. Stevedors Association, Vishakhapatnam and Ors. AIR 1970 SC 1626. 7. Thereafter, our attention is invited to another judgment of the Hon'ble Supreme Court of India in the case of Hussan Mithu Mhasvadkar vs. Bombay Iron and Steel Labour Board and Anr. Appeal (Civil) 11189 of 1995, decided on 7th September, 2001. 8. It is also submitted that the petitioners have been brought under the service tax net only by an amendment. In these circumstances, compelling the petitioners to abide by this precondition of the statute and of securing the demand to the extent of 7.5% of the tax and interest/penalty demanded would negate the right of appeal. The Board has no finance and resources of its own. It would face enormous difficulties in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less the appellant has deposited ten per cent. of the duty demanded or penalty imposed or both, in pursuance of the decision or order appealed against: Provided that the amount required to be deposited under this section shall not exceed rupees ten crores: Provided further that the provisions of this section shall not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance Act (No. 2) of 2014. Explanation For the purposes of this section duty demanded shall include;- (i) amount determined under section 11-D; (ii) amount of erroneous CENVAT credit taken; (iii) amount payable under rule 6 of the CENVAT Credit Rules, 2001 or the CENVAT Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) amount of erroneous CENVAT credit taken; (iii) amount payable under rule 57-CC of Central Excise Rules, 1944; (iv) amount payable under rule 6 of CENVAT Rules, 2001 or CENVAT Credit Rules, 2002 or CENVAT Credit Rules, 2004; (v) interest payable under the provisions of this act or the rules made thererunder. 11. A Division Bench of this court presided over by one of us (S.C.Dharmadhikari,J.) had an occasion to consider the argument that by the prior regime, it was open for the Tribunal to dispense with the requirement of pre-deposit and it was possible for the appellant to seek a waiver therefrom. Now, such a stipulation is absent. Now, it is mandated that 7.5% of the duty demanded or penalty imposed or both has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... audited and even the determination of moneys due from employers, principal employers and security guards enables the Board to generate funds. Equally, it is not as if the State Government cannot contribute anything. In appropriate cases, the Board can approach the State Government and for necessary financial assistance or grant. 14. We do not think that there is a financial hardship and of such nature as would enable us to hold that the statute imposes a excessive or onerous condition so as to avail of the right of appeal. Pertinently, neither the provisions are challenged nor the stipulation as aforesaid. The writ petition is filed only on the ground that it is not possible for the Board to arrange for the predeposit. We do not think t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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