TMI Blog2021 (3) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... ORS. [ 2020 (3) TMI 1310 - SUPREME COURT] - From perusal of the relevant extract of Section 114A, it is evident that the language employed by the legislature is plain and unambiguous and the provision contains a positive condition with regard to levy of penalty equal to duty or interest and does not contain any negative condition. The expression used is 'or' which is disjunctive between duty or interest and further use of expression as the case may be clearly suggest that aforesaid provision refers to two different persons and two different situations viz., one in which a person will be liable to duty and in other he may be liable to pay interest only and provides that in both the situations the person liable to duty would be liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal (hereinafter referred to as the Tribunal ). 2. The appeal was admitted by a Bench of this Court vide order dated 15.04.2019 on the following substantial questions of law. 1) Whether the Tribunal is right in holding that as the amount in interest can not be quantified and hence penalty equivalent to duty and interest can not be imposed under Section 114A? 2) Whether the Circular No.61/2002 issued by CBEC is not binding on the adjudicating authorities working under the CBEC? 3) Whether the terms (conjunctions) or used in Section 114A of Customs Act, 1962 has to be read as and for the purpose of imposing penalty under the said Section? 3. Facts giving rise to filing of this appeal briefly started are that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Revenue Intelligence, inter alia it was stated that he was importing viscose filament yarn for a price of ₹ 108 per kg but was billing for only ₹ 125 per kg and the difference in selling price was received by him in cash and the accumulated cash was paid by him to Mr.Henry. 5. The aforesaid Gopala Swamy has further stated in his statement that he has undervalued the earlier imports also of SSC and the difference between the actual price of the import goods and the price declared to the Customs is USD $0.70 per Kg and USD $0.50 per Kg in respect of the imports made by him from suppliers from Chennai. It was further reiterated that he has made payment to the overseas suppliers through bank to the extent of the invoiced amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture would have used the expression whichever is higher or greater. It is further submitted that the aforesaid issue has been clarified by the Circular issued by the Central Board of Excise and Customs dated 20.09.2002, whereunder it has been clarified that the penalty under Section 114A of the Act should be equivalent to duty and interest and the expression or used in Section 114A of the Act has to be read as and . 8. On the other hand, learned counsel for the respondent submitted that the language of Section 114A of the Act is plain and unambiguous and the principle of liberal construction is applicable for interpretation of Section 114A of the Act and if the expression 'or' is read as and , the same would amount to doing v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; n a statute. But you do not do it unless you are obliged because 'or' does not generally mean 'and' and 'and' does not generally mean 'or'. And as pointed out by Lord Halsbury the reading of 'or; as 'and' is not to be restored to, unless some other part of the same statute or the clear intention of it required that to be done. Where provision is clear and unambiguous the word 'or' cannot be read as 'and' by applying the principle of reading down. ..speaking generally, a distinction may be made between positive and negative conditions prescribed by a statute for acquiring a right or benefit. Positive conditions separated by 'or' and read in the alternative but ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween duty or interest and further use of expression as the case may be clearly suggest that aforesaid provision refers to two different persons and two different situations viz., one in which a person will be liable to duty and in other he may be liable to pay interest only and provides that in both the situations the person liable to duty would be liable to penalty equal to duty and person liable to interest would be liable to penalty equal to interest. Therefore, in view of law laid down by constitution bench of Supreme Court, the word 'or' cannot be interpreted as 'and'. 13. So far as reliance placed by learned counsel for the appellant on the clarification issued by Central Board of Excise and Customs dated 20.09.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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