Custom, Excise & Service Tax Tribunal
Shakti Jewellers Pvt Ltd vs Noida on 13 September, 2019
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
ALLAHABAD
REGIONAL BENCH - COURT NO.I
Customs Appeal No.70148 of 2019
(Arising out of Order-in-Original No.28-30/COMMR./NOIDA-CUS/2018 dated
18/10/2018 passed by Commissioner, Customs House, Noida)
Shakti Jewellers Pvt. Ltd. .....Appellant
(80/80, Patwa Chawl, 2nd Floor,
Shaikh Memmon Street, Zaveri Bazaar,
Mumbai-400002.)
VERSUS
Commissioner of Customs,
Customs House, Noida .....Respondent
(Concor Complex, P.O. Container Depot, Greater Noida, Gautam Budh Nagar, Noida, U.P.) WITH
(i) Customs Appeal No.70218 of 2019 (Mahesh Kumar Moolchand Kothari)
(ii) Customs Appeal No.70321 of 2019 (Mohd. Irfan Munshi)
(iii) Customs Appeal No.70351 of 2019 (Mukesh Mahesh Kumar Kothari)
(iv) Customs Appeal No.70352 of 2019 (Bharat Jamnadas Jagda)
(v) Customs Appeal No.70354 of 2019 (Jaison Simon Panakkal)
(vi) Customs Appeal No.70055 of 2019 (Mahesh & Co.
Pte. Ltd.)
(vii) Customs Appeal No.70056 of 2019 (Mahesh Kumar)
(viii) Customs Appeal No.70495 of 2019 (Shri Rajesh Ratanlal Pacheria) AND
(ix) Customs Appeal No.70318 of 2019 (Commissioner of Customs, Noida) (Arising out of Order-in-Original No.28-30/COMMR./NOIDA-CUS/2018 dated 18/10/2018 passed by Commissioner, Customs House, Noida) APPEARANCE:
Shri Prakash Shah, Advocate, & Shri Nishant Mishra, Advocate for Assessee (In Appeal Nos.7055,70056,70148,70351,70218 & 70352 of 2019)
2 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 & Shri Alok Yadav, Advocate (In Appeal Nos.70321, 70495 & 70354 of 2019) Shri Rajeev Ranjan & Shri P.K. Singh Authorized Representative for Revenue CORAM :
Hon'ble Mrs. ARCHANA WADHWA, MEMBER (JUDICIAL) Hon'ble Mr. ANIL G. SHAKKARWAR, MEMBER (TECHNICAL) FINAL ORDER NO. 71733-71742 / 2019 DATE OF HEARING : 09 July, 2019 DATE OF PRONOUNCEMENT : 12 September, 2019 ARCHANA WADHWA All the appeals including the appeals filed by Revenue are being disposed of by a common order as they arise out of the same impugned order passed by Commissioner of Customs, Noida vide which apart from confiscating the gold jewellery and imposing penalty upon various noticees, the Original Authority has imposed penalties on the present appellants to the extent as shown in the following table:-
SERIAL APPEAL No. APPELLANT PENALTY
No.
1. C/70148/2019 M/s Shakti Rs.6.00 Cr. U/S 112 of
Jewellers Pvt. the Customs Act, 1962
Ltd.
Rs.6.00 Cr. U/S 114
2. C/70218/2019 M/s Mahesh Rs.9.00 Lakhs U/S 112
Kumar
Moolchand
Kothari
3. C/70318/2019 Commissioner of -NA-
Customs, Noida
V/s
M/s Vee Ess
Jewellers Pvt.
Ltd.
3 C/70148,70218, 70318, 70321,
70351, 70352, 70354, 705055, 70056 & 70495/2019
4. C/70321/2019 Mohd Irfan Rs.60.00 Lakhs U/S 112 Munshi
5. C/70351/2019 Mukesh Mahesh Rs.60,000/- U/S 112 Kumar Kothhari
6. C/70352/2019 Bharat Jamnadas Rs.8.00 Lakhs U/S 112 Jagda Rs.8.00 Lakhs U/S 114
7. C/70354/2019 Jaison Simon Rs.60.00 Lakhs U/S 112 Panakkal
8. C/70055/2019 Mahesh and Co. Rs.15.00 Cr. U/S 114AA Pte. Ltd., Singapore Rs.6.50 Lakhs U/s 112 Rs.6.50 Lakhs U/s 114
9. C/70056/2019 Shri Mahesh Rs.15.00 Cr. U/S 114AA Kumar of M/s Mahesh & Co. Rs.6.50 Lakhs U/s 112 Pte. Ltd.
Rs.6.50 Lakhs U/s 114
10. C/70495/2019 Shri Rajesh Rs.5.00 Lakhs U/S 112 Ratanlal Pacheria
2. Though no confiscation of any seized jewellery stands made in respect of the present appellants but to appreciate the factual background, the facts are being adverted to in brief. The Directorate of Revenue Intelligence (hereinafter referred to as DRI) received an intelligence that certain companies based in Delhi, Mumbai, Dubai & Singapore are conspiring together to misuse the facilities provided under Special Economic Zone (hereinafter referred to as "SEZ") scheme to import gold jewellery by mis-declaring the same as out dated and old jewellery for repair, remaking, polishing etc. to be used as raw material in their SEZ unit and by showing their fulfilment of export obligation by 4 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 substituting the same with the Indian made jewellery.
Accordingly, DRI Officers conducted searches at various places and primarily in the premises of two units by the Name M/s Vee Ess Jewellers Private Limited and M/s Ajit Exports, two units situated in the SEZ area of Noida. The office-cum-business premises of the said two units located at karol Bagh, New Delhi were also put to search along with searching residential premises of Shri Ajit Singh partner of M/s Ajit Exports and Shri Komal Jain Director of M/s Vee Ess Jewellers Private Limited and his brother Shir Kirti Jain partner of M/s Ajit Exports. In addition business premises of one M/s Omkar Jewellers located at Karol Bagh was also put to search.
During the search of common factory premises of M/s Vee Ess Jewellers Private Limited and M/s Ajeet Exports situated in the SEZ area, the officers found 15 packages lying in the office room being used by the Directors/Partners. On inspection of the same, it was found that 13 packages were pertaining to export consignment and remaining two packages were pertaining to the import consignments. As the import packages were found to be declared as out dated gold jewellery for melting and remaking, the same were got examined by the Department from jewellery expert appraiser. As per the report of the expert, there was gross mis-declaration with respect to the description of the goods though the weight of the goods was found to be tallying with the declaration. It was found that the gold jewellery in respect of the import consignments was new and ready for sale/marketing. Similarly the 5 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 search at the residential premises of Shri Ajit Singh resulted in recovery of assorted gold jewellery and as the evidence for legal possession could not be produced, the same was seized under a panchnama. The details of the recovery of jewellery and subsequent seizer of the same which stands confiscated vide the present impugned order, are not being adverted to inasmuch as the said M/s Vee Ess Jeweller and M/s Ajit Exports have not challenged the present impugned order. As such, the facts relatable to the present appellants are only being dealt with.
3. By entertaining a view that the imported jewellery was being disposed of by the said two SEZ units in Indian domestic market and the export obligation was fulfilled by procuring the other jewellery manufactured in India, further investigations were undertaken by the Revenue. Various jewellery outlets in India were investigated, who were believed to be aiding and abetting M/s Vee Ess Jewellers and M/s Ajit Export in disposal of the imported gold jewellery.
4. Before the fact of each and every case involved in the present appeal are adverted to, it may not be out of place to mention that the jewellery seized from the office of said SEZ units was proposed to be confiscated and customs duty against SEZ units was proposed to be confirmed along with imposition of penalty upon them by way of issuance of separate show cause notice which resulted in passing of an order by the Commissioner of Customs Air Cargo, Exports new customs house IGI Air Port, New Delhi by a separate Order-in-Original dated 31 January, 2011 confirming 6 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 demand of duty, confiscating the seized goods and imposing penalty upon various persons. As the penalty was also imposed upon M/s Omkar Jewellers, New Delhi and M/s Orbit Gold, Mumbai, appeals were filed by the said two noticees before the Tribunal and the same was disposed of vide Tribunal's Final Order No.C/A/51307-51315/2016-CU[DB] dated 27 April, 2016 by setting aside the penalties imposed upon the said two appellants.
5. During the course of investigation, the Revenue recorded the statements of various persons. The statement of Shri Bharat Jamnadas Jagda, Director of M/s Shakti Jewellers Pvt. Ltd. and partner in M/s Omkar Jewellers was recorded on 07 February, 2009 wherein he deposed that he was trading in gold jewellery; that they started exporting jewellery to Dubai and America as also doing business in the local market; that son of his Partner Shri Mahesh Kumar Moolchand Kothari was proprietor of M/s Orbit Jewellers and they knew Shri Ajit of M/s Ajit Exports; that he would also collect jewellery imported by other persons and then handing over the same to the concerned persons at the rate of Rs.5 per gram as carrying charge. He gave the detail of modus operandi followed by them in such sale of imported goods in the Indian market. In his subsequent statement he admitted having received foreign gold jewellery from Shri Ajit Singh of M/s Ajit Exports and carrying the same from Delhi to Mumbai and handing over the same to the concerned persons as per the instructions. He also disclosed that customs duty was not paid on the said jewellery so transported by him. In 7 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 his further statement dated 08 June, 2009, he clarified that he was running his own firm under the name and style of M/s Omkar Jewellers and was engaged in the manufacture and sale of gold Jewellery; that they purchased gold bar from the local market and got gold jewellery manufactured on payment of labour charges and sold the same in the market. He also disclosed that he was getting gold bar from various jewellery shops for manufacture of the gold jewellery. He also deposed that on one or two occasions he has helped M/s Ajit Exports or M/s Vee Ess Jewellers when their consignments were stuck in USA. His further statement was recorded on 14 January, 2010 again reiterating the same stand. Statements of one Shri Kamlesh B Jain who was instrumental in purchasing jewellery in Dubai and importing the same through SEZ route was also recorded on 07 July, 2009 and 22 April, 2009. He deposed that he visited the shop of M/s Deepu Jewellers in Dubai whom he knew through a local friend in India and purchased Jewellery worth Rs.38 lakhs. Shri Kishore Bhai Dhakan agreed to arrange to export the said jewellery from Dubai to Mumbai on credit basis and the same was received by him in India through one Shri Bhavik Khothari. He also gave details of one of the two visits to Dubai and purchases of the jewellery. The statements of Shri Kiran Kumar Sanghvi, Shri Hemant Kothari, Shri Ramesh Kothari, Shir Suresh B Rathore, Shri Devilal Sohan Lal Jain were also recorded who according to the Revenue were the persons purchasing gold jewellery in Dubai and receiving the same through SEZ route giving bill of purchase of jewellery in Dubai 8 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 and importing the same through SEZ routes. During the course of further investigations, statements of various persons were recorded including the Authorized Representatives of the Dubai Based and Singapore based jewellers who had exported the goods to the said two SEZ units.
6. During the course of further investigations, statements of various persons including the Authorized Representative of the present appellants were also recorded. Inasmuch as the said evidences procured by the Revenue by way of various statements are primarily in relation to two SEZ units, the details of the same are not being adverted to except where the same are relevant for the purpose of disposing the present appeals.
7. Based upon the investigations, proceedings were initiated against all the noticees including the two SEZ units. Vide impugned order passed by Commissioner of Customs, Noida, demand of duty stand confirmed against M/s Ajit Exports as also against M/s Vee Ess Jewellers Pvt. Ltd. along with imposition of penalties etc. upon them. In addition, he imposed penalty upon various other noticees including the present appellants. Inasmuch as M/s Vee Ess Jewellers and M/s Ajit exports have not filed appeas against the impugned order as also the said order does not stand appealed against by various other noticees, the appeals of the present appellants are required to be decided on the basis of the evidences relatable to them only. As such, in the above back drop of facts and circumstances, we proceed to decide the appeal of each and every 9 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 appellant separately by adverting to evidences available in respect of them only.
M/s SHAKTI JEWELLERS PVT. LTD.
8. Penalty of Rs.6 crores stands imposed upon the said M/s Shakti Jewellers Pvt. Ltd. under Section 112 of the Customs Act, 1962 and an identical amount of personal penalty stands imposed upon them under Section 114 of the Customs Act. As per the allegations of the Revenue, the two SEZ units by the name of M/s Ajit Exports and M/s Vee Ess Jewellers Pvt. Ltd. were importing gold Jewellery from one M/s Deepu Jewellers, Dubai, M/s Samrah Gold Factory, Sharjah and M/s Mahesh and Co., Singapore for the purpose of assembling, refinishing, plating etc. which was required to be re-exported by them as per the directions of the suppliers. The said SEZ units were duly authorized to import the said jewellery and to re-export the same. The entire investigation of the Revenue revealed that the said two SEZ units, instead of undertaking the requisite process on the imported jewellery were diverting the same in the open domestic market and instead were exporting primary gold/gold bar and Indian made gold jewellery procured from the local market by declaring the same in the invoices and shipping bills as gold jewellery under the procedure of self-declaration and self-certification. The allegations against the present appellant is that they, through their Director Shri Bharat Jamnadas Jagda delivered locally manufactured jewellery to the said two SEZ units who 10 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 further exported the same under the garb of remanufactured imported jewellery. The Revenue's allegations are based upon the fax messages sent from the fax machine of M/s Shakti Jewellers Pvt. Ltd. and found in the file of the said two SEZ units. Based on the said two messages and notings made on the file viz-a- viz 'All BH goods' and 'All Bharat goods', 'All Goods of Bharat' it is believed by the Revenue that the goods described in the fax messages were locally made jewellery which was delivered by the M/s Shakti Jewellers Pvt. Ltd. to the said two SEZ units who exported the same by mis-declaring the same to fulfil the export obligation. As such it has been held that Shri Bharat Jamnadas Jadga of Shri Shakti Jewellers Pvt. Ltd. facilitated the fraudulent fulfillment of export to SEZ by way of supplying Indian made gold jewellery to the said two units.
It is seen that the premises of M/s Shakti Jewellers Pvt. Ltd. were also put to search on 06 February, 2009 and nothing incriminating was found therein and as such no panchnama was drawn. Contesting the imposition of penalty upon them the learned counsel appearing for the appellant submits that the entire case of the Revenue is based upon the fax messages received by the said SEZ units from the fax number of the appellant read with various statements recorded. Apart from that there is no other evidence like any other bill/challans etc. found during the search of the SEZ units or the appellant. Though the appellant have strongly denied the sending of the said fax messages and has drawn our attention to the 11 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 statement dated 05 July, 2010 of Shri Bharat Jamnadas Jagda to the effect that he has never dealt with the matter and may be some other person of Shri Kishore Dhakkan has sent this fax from their fax number but submits the learned advocate, that in any case, the appellant cannot be held guilty merely based upon the said fax messages. None of the witnesses whose statements were recorded during the investigations have explained the meaning of the remarks "All Bharat goods " or "All BH goods" and "All goods of Bharat"
neither anybody claimed that the jewellery described in the fax were supplied by Shri Bharat Jamnadas Jagda of M/s Shakti Jewellers Pvt. Ltd. .
9. We note that Shri Bharat Jamnadas Jagda in his statement dated 06 February, 2009 has stated that M/s Shakti Jewellers Pvt. Ltd. received export order from M/s Deepu Jewellers, Dubai for export of gold jewellery which was exported through M/s Ajit Export under Airway Bill dated 16 January, 2009 valued at $ 523310/-. The said statement of Shri Bharat Jamnadas Jagda has remained uncontroverted. It is not the Revenue's case that the said export of the gold jewellery by M/s Shakti Jewellers Pvt. Ltd. through M/s Ajit Export was in discharge of the export obligation of the said SEZ unit. As such, the Revenue's allegation and findings that the jewellery supplied by M/s Shakti Jewellers Pvt. Ltd. was exported by M/s Ajit Exports for discharge of export obligation are without any evidences and are based only on assumption and presumption. The Commissioner has not recorded any finding to the effect that the jewellery supplied by Shri
12 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 Bharat Jamnadas Jagda were used by said two SEZ units for discharge of their export obligation with their knowledge and consent. As such, the findings of the Authorities below that the present appellant has aided and abetted the said two SEZ units in the fraudulent activities are not based upon any evidences.
10. After going through the impugned order and after hearing the learned Authorized Representative who reiterated the reasoning of the Adjudicating Authority for imposition of penalty upon the present appellant, we note that the Adjudicating Authority has not dealt with the penal liability of the M/s Shakti Jewellers Pvt. Ltd. Apart from the reference to the fax messages recovered from the premises of the SEZ units, there is factually no evidences on record to show that M/s Shakti Jewellers Pvt. Ltd., in any way, were connected with fraudulent activity if any of the said two SEZ units. These fax messages have been held relatable to M/s Shakti Jewellers Pvt. Ltd. only on the ground that the same were sent through their fax number. Apart from the fact that Shri Bharat Jamnadas Jagda, Director of M/s Shakti Jewellers Pvt. Ltd. has explained in his statement recorded during the investigation that he has not sent the said fax messages and the same might have been sent by any other person, we note that no person in his statements has clarified use of expression 'All Bharat goods', 'All BH goods' & 'All goods of Bharat' used in the said messages. It is also uncontroverted fact on record that the jewellery supplied by the present appellant was exported by M/s Ajit Exports by way of a separate 13 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 Airway bill, which was in no way relatable to fulfilment of export obligation by M/s Ajit exports. We find that there is factually no evidence on record to show that the jewellery exported by the two SEZ units in lieu of their export obligation, was obtained by them from M/s Shakti Jewellers Pvt. Ltd.
In any case and in any view of the matter we note that the only case of Revenue against the present appellant is that he has supplied Indian made jewellery to the said two SEZ units. Even if the said allegation is accepted to be true reflection of facts, we really fail to understand as to how the sale of jewellery to the SEZ units can be held to be an offence in the absence of any evidences to reflect knowledge on the part of the appellant that the said gold jewellery so received by SEZ units was going to be misused by the SEZ units, who would use the same for export by declaring it as the same jewellery as was imported by them for the purpose of remaking etc. There is factually no evidence to reflect upon the knowledge of the appellant or any reason so as to make them believe that the said jewellery would be misused by the SEZ units. The absence of any knowledge would not invite any penal action against them in terms of Section 112 or 114 of the Customs Act, which make knowledge or reason to believe as an essential component or condition for invocation of the said section. It is further seen that there is neither any allegation nor any evidence brought on record by the Revenue nor is there any finding recorded by the Commissioner that the said appellant did or omitted to do any act or omission 14 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 which rendered the imported jewellery, alleged to have been clandestinely removed by the said SEZ unit without payment of duty liable to confiscation under Section 110 or Section 113 of the Customs Act or the appellant abetted commission of such acts by the SEZ unit so as to invite penal action under Section 112 of the Act. As such, we hold that the penalty imposed on them under Section 112 or 114 is neither warranted nor justified and the same is accordingly set aside.
SHRI BHARAT JAMNADAS JAGDA
11. Shri Bharat Jamnadas Jagda is Director of M/s Shakti Jewellers Pvt. Ltd. and is Proprietor of M/s Omkar Jewellers. The penalties stands imposed upon him to the extent of Rs.8.00/- lakhs each under Section 112 as also under Section 114 of the Customs Act as director of M/s Shakti Jewellers and Proprietor of M/s Omkar Jewellers. As we have already observed that M/s Shakti Jewellers Pvt. Ltd. was only supplying jewellery to the two SEZ units and in the absence of any knowledge on their part as regards the use of the said supplied jewellery, no penalty can be imposed upon them. For the same reason penalties imposed upon Shir Bharat Jamnadas Jagda as Director of M/s Shakti Jewelers is not called for.
It is further seen that Shri Bharat Jamnadas Jagda also owns a proprietary firm M/s Omkar Jewelers. The role attributed by the Revenue to Shri Bharat Jamnadas Jagda is that he used to receive gold jewellery from Shri Komal Jain and Shri Ajit Sing 15 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 of the two SEZ units M/s Vee Ess Jewellers Pvt. Ltd. & M/s Ajit Exports for further delivery of the same to the various persons. It stands contended before us that even if the said allegations are accepted to be true the only role attributable to the said appellants is receiving of packages and further delivering the same to various persons identified by Shri Kishore Ratilal Dhakan which again cannot be considered to be an offence in the absence of any knowledge about the fact that such jewellery delievery was in contravention of various SEZ facilities. Mere jewellery delivery, against consideration of Rs.5/- per Kg., which is a normal delivery procedure in jewellery business cannot be held to be an offence so as to invite penal action. There is no evidence on record to show and establish that supply of locally manufactured jewellery either made by M/s Shakti Jewellers or by Shri Bharat Jamnadas Jagda to the SEZ units was for facilitating export obligations or to show that the locally manufactured jewellery was used for discharge of export obligation. It also stands brought to our notice that the imposition of penalty upon Shri Bharat Jamnadas Jagda who is proprietor of M/s Omkar Jewellers is not justified inasmuch as they had, in the earlier seizer case of jewellery had deposited the full amount of duty and interest along with deposit of 25% of duty towards penalty on the seized goods, with a view to buy peace with the Revenue. In spite of that Revenue initiated proceedings against them proposing imposition of penalty upon them, which matter travelled up to Tribunal and vide Final Order No.C/51307-51315/2016-CU[DB] dated 27 April, 2016, 16 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 it was held that the proceedings could not have continued against them and no further penalty could have been imposed under Section 112 of the Act. As such, submits the learned advocate that imposition of penalty and the penal proceedings are against the earlier order of the Tribunal inasmuch as it was clearly observed that the said appellant having deposited duty, interest and 25% of the penalty, proceeding have to be held has concluded.
12. On going through the earlier order of the Tribunal, we find that admittedly jewellery recovered from the present appellant's premises located in Karolbag was subsequently duty paid along with payment of interest and 25% of penalty in which case Tribunal observed that the proceedings have to be held as concluded and no further proceedings can be initiated against them. In such a scenario imposition of penalty in terms of Section 112 of the Act, based upon the said same set of facts and circumstances cannot be upheld.
Otherwise also we find that there is virtually no evidence against Shri Bharat Jamnadas Jagda indicating any knowledge on his part as regards the supply of the jewellery from SEZ units to various customers knowing or having reasons to belief that the same stands illegally diverted by SEZ units to domestic market. In the absence of the same, we are of the view that imposition of penalties upon him is neither justified nor warranted and accordingly, the same are set aside. We further observe that the seized and confiscated 17 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 Indian Currency of Rs.36 lakhs is required to be refunded to him.
MAHESH & CO. PTE.LTD.
& SHRI MAHESH KUMAR
13. M/s Mahesh & Co. Pte. Ltd., Singapore is a company incorporated under the laws of Singapore and is engaged in the export/import of gold jewellery. The said appellant had supplied gold jewellery to two SEZ units viz. M/s Ajit Exports and M/s Vee Ess Jewellers Pvt. Ltd., under the cover of invoices as also the customs documents for the purpose of carrying out finishing, plating and remaking etc. of the same. As per the appellant full commercial value of the jewellery was declared in the invoice issued by them. The said jewellery sent by the present appellant was to be remade by M/s Vee Ess Jewellers and M/s Ajit Exports and after reprocessing, was to be exported back to the present appellant, for which they were duly authorized by law.
As per the investigations conducted by the Revenue, the jewellery exported by M/s Mahesh & Co. Pte. Ltd., Singapore to the said two SEZ units were cleared by them in the domestic market and instead of re-exporting the same, the said SEZ units exported the locally procured jewellery, gold bars as also sometime metal scrap.
14. The Revenue in the show cause notice issued to various persons, proposed imposition of penalty upon the said exporter of Singapore under various Sections 18 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 of the Customs Act. The penalty to the extent of Rs.6.50 lakhs stands imposed upon M/s Mahesh & Co. each under Section 112 as also under Section 114 of the Customs Act. Further penalty of Rs.15 crore stands imposed under Section 114AA of the Act. Similarly, notice proposed imposition of penalty on Shri Mahesh Kumar of M/s Mahesh & Co. Separate penalty of Rs.6.50 lakhs stands imposed upon him under Section 112 as also under Section 114 separately. Further penalty of Rs.15 crores stands imposed under Section 114AA of the Act. The said penalties stand imposed on the allegation and finding that by sending the jewellery to SEZ units and by receiving back the jewellery other than the one which was sent by the appellant, they have aided and abetted the SEZ unit in evasion of Customs Duty.
15. Apart from above it is seen that M/s Mahesh & Co., Singapore had send two boxes of jewellery under Airway Bill dated 05 February, 2009 showing M/s Vee Ess Jewellers Pvt. Ltd. as the consignee of the goods. The said consignment of gold jewellery was covered by Invoice No.48534 from Singapore to New Delhi dated 05 February, 2009 and was sent for assembling, re- finishing, plating and remaking and after the reprocessing, to export back the same to the present appellant. The invoices accompanying the said consignment indicating that the jewellery had been sent for job work and ownership continued to be with M/s Mahesh & Co.
As M/s Vee Ess Jewellers Pvt. Ltd. did not file any bill of entry nor initiated any action to take the delivery 19 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 of the gold jewellery for the purpose of job work, the matter was taken up by the appellant with M/s Vee Ess Jewellers, who vide their letter dated 27 May, 2009 addressed to the appellant indicated that they are not in a position to undertake the job work and as such would not be taking any action for clearance of the same. On receipt of the said communication and to ensure that the consignee has abandoned the goods, the appellant sent the shipment documents to State Bank of India, Noida who clarified that the documents can be released only to M/s Vee Ess Jewellers Pvt. Ltd. on their accepting the bill of exchange. Accordingly, the documents were returned to the appellant.
As the consigne did not take the release of the said jewellery and the appellant continued to be the unpaid owner of the goods, they approached the Revenue for release of the same.
16. As the Revenue was not releasing the goods, the appellant filed writ petition before the Hon'ble High Court of Delhi who vide their order dated 04 October, 2010 directed the Commissioner of Customs to hear the appellant and to dispose of their representation accordingly. The Commissioner of Customs vide his order dated 31 March, 2011 held that the goods are not liable to confiscation as no bill of entry stands filed and there is no violation of any provisions of the Customs Act but the consignment does not belong to the appellant and rejected their request for re-export of the same and further directed that this decision be communicated to DRT so as to make out a way for State Bank of India to take action. The said order of the 20 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 Commissioner was appealed against by the Revenue before Tribunal who vide their Final Order No.C/A/53892/2015-CU[DB] dated 30 December, 2015 observed that Commissioner of Customs has no powers or jurisdiction to decide the claim of title to the seized goods, in favour of M/s Vee Ess Jewellers. Accordingly, the said order of the Commissioner was set aside and the appellant was directed to pursue the appropriate remedy under the law to establish its claim to the seized gold jewellery and return thereon to itself. Accordingly, the matter was sent back to Commissioner.
In the present proceedings, the appellant is seeking re-export of the said gold jewellery also.
17. After hearing both the sides duly represented by learned advocate Shri Prakash Shah & Shri Nishant Mishra appearing on behalf of the appellant and learned Authorized Representative Shri Rajeev Ranjan & Shri P.K. Singh appearing on behalf of the Revenue, we find that the challenge in the present appeal of M/s Mahesh & Co. is to imposition of penalties upon them as also on Shri Mahesh Kumar under the provisions of Section 112, 114 & 114AA of the Customs Act as also the prayer to re-export the gold jewellery covered by Airway Bill dated 05 February, 2009 for which M/s Vee Ess Jewellers Pvt. Ltd. have not filed any bill of entry.
18. As regards imposition of penalties, we note that the Revenue's case towards the said appellant is that he has exported branded new gold jewellery to two SEZ units by mis-declaring the same as old jewellery 21 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 requiring polishing, plating etc. For alleging so the Revenue has relied upon the statements of various persons recorded during the course of investigation. As already observed the deponents of the said statements have not been offered for cross-examination and as such the statement have not been tested on the test tool of the cross-examination so as to adjudge the veracity of their correctness and truth. Apart from the said statement, there is virtually no other evidence on record to indicate that the gold jewellery sent by the appellant was being disposed of by the two SEZ units in India and some other goods like gold bars, different gold jewellery and sometimes scrap etc. was being exported back. There is no evidence as to how the value of the gold jewellery sent by M/s Mahesh & Co. were being compensated to them. In the absence of any other evidence, except the untested statements, the Revenue's allegations cannot be upheld against the said appellant. As held by precedent decisions of various High Courts (to whom we shall be referring to in the succeeding paragraphs) statement by itself, though may be a leading investigating tool for further collection of evidences, cannot be held to be the evidence themselves and requires further corroboration from independent sources. The recording of the inculpatory statement during the course of investigation can be on account of numbers of factors involving threat of arrest, pressure, cohersive action or any other lurement etc. Prosecution cannot build its case upon sole testimony of co-noticees statement without their being any independent corroboration 22 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 especially when the said deponents have neither been cross-examined nor examination-in-chief stands conducted by the Adjudicating Authority. As the case law on the said issue of cross-examination and examination in chief, relied upon by all the appellants is common, and relates to the same evidences available in all the cases, the same shall be adverted to in the conclusive part of our order.
19. The learned AR appearing for the Revenue has contended that as the appellant did not participate either in the investigation proceeding nor in the adjudication proceedings, their guilt stands accepted by them, inasmuch as they have nothing to offer on facts of the case. We find no merits in the above contentions of the learned AR. Admittedly the said appellant was located in Singapore as a company incorporated under the Singapore laws. The summon send by the Revenue Authorities did not stands responded to by the said company. The said fact does not ipso facto lead to the conclusion that the appellant has accepted their guilt by merely not making themselves available for recording of their statements or by not participating in the adjudication proceedings.
20. In any case and in any view of the matter, we note that the Revenue's allegation and findings are to the effect that the said appellant has sent brand new jewellery under the garb of old jewellery and has received back gold bar and other Indian jewellery from the SEZ unit. We note that the Customs Authorities are required to examine the goods at the time of import as well as export of the same. Admittedly the imported old 23 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 jewellery was cleared by the SEZ units on presentation of documents, which were verified by the Customs Authorities. Similarly export has taken place by filing the documents with the Customs Authorities who have verified and assessed the same. At the time of assessing bill of entries as also shipping bills, Customs are expected to do the examination of the goods which in the absence of any evidence to the contrary, can be presumed to have been done by the Customs. Revenue has not brought any incident on record or to our knowledge that such examination has resulted in identification of the goods other than the one declared in the documents. We really fail to understand that when the jewellery was imported by the SEZ units and when the same was subsequently exported, the declarations filed by the two SEZ units in the bills of entries as also in the shipping bills were found to be correct by the Customs Authorities, how could Revenue allege to the contrary based upon only the statements recorded during the investigation.
21. Apart from the fact that there is virtually no evidence to impose penalty upon the appellant under Section 112 and 114 of the Customs Act, which deals with the import and export of the goods only as also under Section 114AA of the Act knowingly giving false declaration, we find that the appellant being a company incorporated under Singapore laws and having no permanent establishment in India and having no place of business in India cannot be penalised under the provisions of Customs Act which is extended to whole of India only in terms of Section 1(2) of the Customs 24 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 Act, 1962 and does not have territorial jurisdiction over the world beyond India. The Adjudicating Authority has nowhere explained as how he has jurisdiction over a company located in Singapore and incorporated under the laws of Singapore. Reference can be made to the following decisions :-
(i) Relax Saftey Industries V/s Commissioner of Customs, Mumbai reported in 2002 (144) E.L.T.
652.
(ii) Narendra Lodaya V/s Commissioner of Customs, Nhava Sheva reported in 2017 (348) E.L.T. 168.
(iii) Guru Electronics Singapore Pte. Ltd. V/s Commr. of Cus., Bangalore, reported in 2009 (240) E.L.T. 56.
22. In view of the forgoing, we find no reasons to uphold penalties upon the said appellants. Accordingly, the same are set aside
23. The appellant have also claimed the return of 38,434.710 gms of gold jewellery exported by them under the cover of invoice No.48534 from Singapore to New Delhi vide Singapore Airlines Airway Bill No. 618 SIN 6672 0264 dated 05 February, 2009. The consignee of the goods was M/s Vee Ess Jewellers Pvt. Ltd. and admittedly the said consignee has not filed any bill of entries with the Customs. As such, the sender of the goods remains the owner of the same as per the customs law, inasmuch as no bill of entry was filed by M/s Vee Ess Jewellers Pvt. Ltd. The invoice issued by 25 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 the appellant clearly reflects that the goods were sent only for job work and ownership of the same remained at all times with the appellant. The said gold jewellery, continued to be under the ownership of the appellant having not been cleared by M/s Vee Ess Jewellers Pvt. Ltd. and is required to be returned to them. Accordingly, we direct the Customs Authority to allow the re-export of the same within a period of two months from the date of the receipt of the present order. Inasmuch as we have held that M/s Mahesh & Co. is not liable to penalty, the imposition of penalties upon Shri Mahesh Kumar are also required to be set aside for the same reason and ground. We order accordingly.
24. In view of the above, both the appeals are allowed with consequential relief to them.
SHRI MUKESH MAHESH KUMAR KOTHARI & SHRI MAHESH KUMAR MOOLCHAND KOTHARI
25. The Challenge in the present appeal is to imposition of penalties imposed upon them to the extent of Rs.60 lakhs and Rs.9 lakhs respectively under Section 112 of the Customs Act, 1962. Apart from the fact that the entire case of the Revenue is based upon the statements which have not been cross-examined, we find that as per the allegations of the Revenue, Shri Mahesh Kumar Moolchand Kothari was sharing the carrying charges of jewellery with Shri Bharat Jamnadas Jagda. The said allegation is based upon the 26 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 statement of Shri Mukesh Kumar son of Shri Mahesh Kumar Moolchand Kothari. As per the appellant the said statement was given by Shri Mukesh Kumar to avoid his and his father's arrest and there is virtually no evidence to indicate that the present two appellants were involved in the so called fraud committed by the SEZ units. Shri Mukesh Kumar Moolchand Kothari is proprietor of M/s Orbit Gold and jewellery recovered from his premises resulted in passing of a separate order which order was appealed against by M/s Orbit Gold before the Tribunal and Tribunal vide its Final Order No.C/A/51307-51315/2016-CU[DB] dated 27 April, 2016 has held that the duties having been deposited along with interest and 25% of penalties the imposition of balance penalties upon the said M/s Orbit Gold is not justified. Inasmuch as the proceedings have been held to be concluded in the earlier set of proceedings, the imposition of penalty vide the present impugned order cannot be upheld. The same are accordingly set aside and their appeals are allowed.
MOHD. IRFAN MUNSHI, SHRI JAISON SIMON PANAKKAL & SHRI RAJESH RATANLAL PACHERIA
26. Penalties to the extent of Rs.60 Lakhs stands imposed upon Mohd. Irfan Munshi & Shri Jaison Simon Panakkal respectively and of Rs.5.00 lakhs stands imposed upon Shri Rajesh Ratanlal Pacheria under Section 112 of the Customs Act. All the three 27 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 appellants are employees of one M/s Damasy Retail Jewelers Pvt. Ltd., Malad (West), Mumbai. Whereas Shri Jaison Simon Panakkal is the country head of the said company w.e.f. January, 2009, Shri Rajesh Ratanlal Pacheria is accounts manager. As per the allegations of the Revenue, M/s Damasy Retail Jewellery P. Ltd. was instrumental in receiving the imported jewellery from one Shri Kishor Rati Lal Dhakan of Dubai through SEZ Routes without payment of duty and subsequently diverting the same in the domestic market. Whereas Shri Jaison Simon has contended that he did not receive the show cause notice and as such could not file a reply, but all the three appellants has pleaded that the entire case of the Revenue is based upon their inculpatory statements read with other co-noticees who had not been presented for cross-examination in spite of the request made by them. It stands contended by Shri Jaison Simon that he joined the company after the disputed period and as such, by no stretch of imagination, can be held to be aiding or abetting his employer in disposal of the gold jewellery. It is a common case for all the employees that there is no finding by the 28 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 Adjudicating Authority in the entire order attributing their role qua imposition of penalty. Penalty in terms of the Section 112 of the Customs Act, 1962 can be imposed on a person if he has done an act of omission or has abetted the act of omission by which imported goods become liable to confiscation. In order to attract the said provision it is necessary that person should either instruct any person who has committed the offence or who has indulged in conspiracy or who intentionally aided an act of illegal omission. There should be knowledge on the part of the person for aiding or abetting the other persons to constitute the offence. The said factors are conspicuously absent in the present case and there is no whisper against the appellant. Accordingly, they have prayed for setting aside the penalties.
Having considered the submissions of the appellants as also after going through the impugned order, we note that admittedly the Adjudicating Authority has not discussed the role of the present appellants. Huge penalties stands imposed upon them on the sole ground that they are being employees of M/s M/s Damasy Retail Jewellery P. Ltd., have 29 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 facilitated movement of the imported jewellery in domestic market. There is factually no evidence reflecting any knowledge on the part of the present employee as regards the alleged misuse of SEZ facilities by the two SEZ units. In the absence of the same, we hold that imposition of penalties upon them has been in a mechanical manner and without appreciating the facts as also the evidences available on record. Apart from reproducing the statements in the impugned order, the Adjudicating Authority has not discussed the role of each and every noticee, in the light of the evidences and have not come to findings of invocation of penal action, which stands abruptly imposed without discussing their liability. We find no justifiable reason to impose penalties upon the said employees. The same are accordingly set aside and their appeals are allowed with consequential relief.
27. At this stage we may refer to certain precedent decisions on the issue of the findings of clandestine activities based upon the statements of various deponents, who have not been allowed cross-
examination The Hon'ble Supreme Court in the case of Andaman Timber Industries v. Commissioner of C.Ex., 30 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 Kolkata-II reported as MANU/SC/1250/2015, while dealing with the cross-examination of the witnesses observed that not allowing the assessee the cross-
examination of witnesses is a serious flaw which makes the order nullity inasmuch as the same amounts to violation of principles of natural justice because of which the assessee was adversely effected. The Hon'ble Supreme Court further observed that when the assessee disputed the correctness of the statements and wanted to cross-examine and such opportunity was not given, the rejection of this plea is totally untenable.
It is not for the adjudicating authority to have guess work as to for what purposes the appellant wanted to cross-examine. It was not for the adjudicating authority to pre-suppose as to what could be the subject matter of the cross-examination. By observing so, the order impugned before the Hon'ble Supreme Court was set aside.
Similarly in the case of M/s. Modern Polythene v.
Commissioner of Trade Tax, U.P., Lucknow the Hon'ble Supreme Court observed that when the taxing authority choose to levy tax or conclude that payment of tax has been evaded on the basis of statements of 31 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 the individuals, the assessee must necessarily be granted an opportunity to cross-examine. Such adverse material can neither be introduced, nor form the foundation for the imposition of additional tax without an opportunity being afforded to the assessee to challenge the statements in cross-examination.
Accordingly the order impugned before the Hon'ble Supreme Court was set aside.
Similarly the Hon'ble Allahabad High Court in the case of Commissioner of Central Excise v. Parmarth Iron Pvt.Ltd. reported as MANU/UP/2113/2010 by referring to various precedent decisions held that if the Revenue chooses not to examine any witness in adjudication, their statements cannot be considered as evidence. If the Revenue chooses to rely on the statements, then in that event the persons, whose statements are relied upon have to be made available for cross-examination for the evidence or statements to be considered. The said decision in the case of M/s Permarth Steel was subsequently followed by the Hon'ble Allahabad High Court in the case of Commissioner of Central Excise, Lucknow V/s M/s Shyam Traders reported as 2016 (333) E.L.T. 389 32 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 (All.), a reference was made to the same and the Hon'ble Supreme Court decision in the case of Andaman Timber Industries V/s Commissioner of Central Excise, Kolkata reported at 2015 (324) E.L.T. 641 (S.C.), the Tribunal's decision allowing cross-
examination of the witnesses was upheld.
28. In fact it is not only the cross-examination of the witnesses which is required in terms of the provisions of section 9D of the Central Excise Act, but the examination-in-chief of the witnesses is also required ot be done as held by the Hon'ble Punjab & Haryana High Court in the case of Ambica International v. Union of India. The Hon'ble High Court held that the provisions of section 9D of the Central Excise Act are required to be scrupulously followed in adjudication proceedings as the same is done in proceedings relating to prosecution. The evidentiary value of the statement, in so far as proving the truth contents thereof is concerned, is completely lost unless and until the case falls within the parameters of section 9D and otherwise it has to be held that adjudicating authority has relied on irrelevant material. If the procedure, which is statutorily prescribed by plenary parliamentary 33 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 legislation, is not followed, it has to be regarded that the Revenue has given up the said witnesses so that the reliance by the Commissioner on said statement has to be regarded as mis-guided and the statements have to be eschewed from consideration as they would not be relevant for providing the truth of the content thereof. The provisions of Section 9D of the Excise Act are pari materia to the provisions of Section 138 B of the Customs Act and the ratio of the above decisions are fully applicable to the fact of the present case.
As in the present case we have already observed that the Revenue's case is solely and entirely based upon the statements of various deponents who have not been offered for cross-examination, such statements have to be kept out of consideration. If that be so, nothing remains with the Revenue to adversely conclude against the appellant. We have noted that the impugned order of the Commissioner merely reproduced statements of various persons and concluded that appellants herein are liable to penalty without discussing their role in the entire facts and circumstances of the case. In the absence of any attribution of specific role to the appellants, making 34 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 them liable to penalty, we fail to uphold the imposition of penalties upon them. It is well settled law that the onus to prove the guilt of an assessee for the purpose of making him liable to penalty is upon the Revenue and is required to be discharged by production of affirmative evidences. The doubts, however strong cannot be converted into evidences so as to hold against the persons.
29. Apart from above, we also find penalty stands imposed upon the appellant in terms of Section 112 and 114 of the Customs Act. On going through the provisions of the said Section 112 we find that the same proposes imposition of penalty for improper importation of goods by a person who in relation to any goods does or omits to do any act which act or omission would render such goods liable to confiscation. Further, the penalty imposition under the said sections can be adhered to only if a person acquires possession of or is in anyway concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to belief are liable to confiscation under Section 35 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019
111. Similarly Section 114 proposes imposition of penalty for admitted export of goods improperly or on person who in relation to such goods does or omits to do any act rendering to goods liable to confiscation under Section 113 or abets the doing or omission of such an act. As such, reading of the two sections of the Customs Act clearly indicate that the person, liable to penalty under the said Sections must have knowledge or reasons to belief that the goods in which he is dealing are liable to confiscation. According to the Revenue, the appellants herein have dealt with goods which the two SEZs have imported and subsequently exported. Even if the Revenue's allegations are accepted to be true, the appellants would be liable to penalty only if they had knowledge about the tainted character of the goods. The onus to prove that the appellant had such knowledge is on the Revenue, required to be discharged by sufficient and positive evidences. In the present case we find that there is not even an iota of evidence except the so called statements which had already been held to be not equal to the evidences, to prove that the appellant have knowledge about the said fact. As such, we are 36 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 reaffirmed in our decisions of non-imposition of penalty upon the said appellants.
30. We further note that as per the findings of the Adjudicating Authority, the two SEZ units were importing the brand new jewellery in the guise of old jewellery for the purpose of remaking, re-polishing etc of the same and then exporting the gold bars or gold jewellery locally procured by them. In terms of the provisions of the Customs Act, the goods imported as well as at the time of export are required to be examined by the Customs Authority and it is only thereafter the goods are allowed clearance either for export or for import. It is reasonably expected that the Customs Authority must have done their job and must have examined the goods at the time of import as well as at the time of export. There is nothing on record to show that any discrepancy was found either in the import or export consignment of the two SEZ units.
Neither is it Revenue's case that the Customs Officers connived with the SEZ units who clear their consignment for import or export without examination.
The assessment having been done by the Customs at the time of import of gold jewellery from Dubai, 37 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 Singapore or other countries and at the time of the export of remade jewelries to the said countries and having not been revoked by the proper officer under the provisions of Customs Act, we really fail to understand as to how Revenue can allege to the contrary and impose penalties upon the appellants.
31. Having observed so, we set aside the impugned order and allow all the appeals with consequential relief to the appellants.
COMMISSIONER OF CUSTOMS, NOIDA
32. As regards the Revenue's appeal, the same is against the two SEZ units M/s Vee Ess Jewellers Pvt.
Ltd. and M/s Ajit Exports. On going through the grounds of appeal we find that the Revenue's grievance is as regards imposition of penalty under Section 114A of the Customs Act. The Adjudicating Authority has imposed penalty under various sections including Section 114A of the Customs Act equivalent to the duty confirmed against them but Revenue's contention is that the Adjudicating Authority has imposed penalty equivalent to duty whereas the same should have been imposed to the extent of duty and interest.
38 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019
33. On going through the provisions of Section 114A of the Customs Act, we find that the same relates to imposition of penalty on a person, who is liable to pay the duty or interest, as the case may be, to the extent equivalent to the duty or interest. The Revenue's contention is that the 'or' appearing in the said section has to be read as 'and' and the penalty required to be imposed should be equivalent to quantum of duty and interest.
34. For better appreciation, we reproduce Section 114A of the Customs Act, 1962:-
"Where the duty has not been levied or has been short-levied or the interest has not been charged or paid or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts, the person who is liable to pay the duty or interest, as the 22 case may be, as determined under [sub-section (8) of section 28] shall also be liable to pay a penalty equal to the duty or interest so determined."
35. As is seen from above the liability to penalty arises on a person who is liable to pay duty or interest. In some case a person may be liable to pay only duty or only interest. The said provision provides for imposition of penalty equal to duty or interest. The use of the expression 'or' as mentioned in the said section is unambiguous and does not lead to any interpretational issue that the said 'or' has to be read as 'and'. The 39 C/70148,70218, 70318, 70321, 70351, 70352, 70354, 705055, 70056 & 70495/2019 Revenue's reference to various decisions of Hon'ble Supreme Court laying down that in the context of those cases 'or' has to be read as 'and', cannot be given effect to, inasmuch as it is only in peculiar facts and circumstances of a particular case that 'or' has to be read as 'and. Revenue itself has given reference to clarifications given by Ministry of Law clarifying that it is occasionally found necessary to read the conjunction 'or' and 'and' as one for the other. The use of the expression occasionally in Ministry of Law's clarification leads us to the conclusion that it is not in each and every case 'or' has to be read as 'and'. In view of the unambiguous nature of the provisions of Section 114A, we find no justification for accepting the Revenue's contention. Accordingly, the appeal filed by the Revenue is rejected.
36. All the appeals are disposed of in above manner.
(Order Pronounced in the open Court on 12 September, 2019) Sd/-
(Archana Wadhwa) Member (Judicial) Sd/-
(Anil G. Shakkarwar) Member (Technical) nihal