2021 (3) TMI 174 - HC - Customs

Imposition of penalty equivalent to duty and interest u/s 114A of Customs Act - Interpretation of Statute - Section 114A of Customs Act - applicability of Circular No.61/2002 issued by CBEC on the adjudicating authorities working under the CBEC - 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? HELD THAT - The rule 114A of statutory interpretation was referred to by constitution bench of the Supreme Court in INDORE DEVELOPMENT AUTHORITY VERSUS MANOHARLAL AND 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 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'. Applicability of clarification issued by Central Board of Excise and Customs dated 20.09.2002 - HELD THAT - Suffice it to say that the clarification cannot be contrary to the plain language of the provision. For yet another reason, no interference is called for as the tribunal has taken a similar view in the case of B.SURESH VASUDEV BALIGA 2015 (1) TMI 1206 - CESTAT BANGALORE and there is no material on record to show that the aforesaid order was challenged by the revenue. Therefore, in the facts of the case, the view taken by the tribunal otherwise also binds the revenue. The substantial question of law framed in this appeal are answered against the appellant and in favour of the respondent - there are no merits in the appeal - appeal dismissed.

Summary

Issues:
Interpretation of provisions of Section 114A of the Customs Act, 1962.

Analysis:
1. The appeal was filed by the revenue against the order of the Customs, Excise and Service Tax Appellate Tribunal. The substantial questions of law raised were regarding the imposition of penalty equivalent to duty and interest under Section 114A of the Act, the binding nature of Circular No.61/2002 issued by CBEC, and the interpretation of the conjunctions 'or' used in Section 114A.

2. The case involved M/s. Sony Sales Corporation and M/s. Krishna Sales Corporation, which under-valued imports of viscose filament by manipulating invoices. The Directorate of Revenue Intelligence conducted searches and recovered incriminating documents. The Commissioner of Customs demanded differential duty, interest, and imposed penalties, leading to the revenue's appeal before the Tribunal.

3. The revenue contended that penalty under Section 114A should be imposed for both duty and interest, interpreting 'or' as 'and'. They relied on the Circular by CBEC, stating the penalty should be equivalent to duty and interest. Conversely, the respondent argued for a liberal construction of the provision, stating that 'or' should not be read as 'and' as it would deviate from the clear language of the Act.

4. The court analyzed the statutory interpretation principles, emphasizing that 'or' and 'and' should be read as per the legislative intent. Referring to Section 114A, the court found the provision clear and unambiguous, specifying penalties for duty or interest separately. The use of 'or' indicated two distinct situations, where the liable person would pay a penalty equal to the duty or interest determined.

5. The court rejected the revenue's argument to interpret 'or' as 'and' based on the Circular, stating that it cannot override the plain language of the Act. Moreover, since the Tribunal had previously ruled on a similar case, and the revenue did not challenge that decision, the court upheld the Tribunal's view. Consequently, the court dismissed the revenue's appeal, ruling in favor of the respondent based on the interpretation of Section 114A of the Act.