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TMI Blog2024 (11) TMI 1433X X X X Extracts X X X X X X X X Extracts X X X X ..... s/2020-21 dated 27/08/2020 passed by Commissioner of Customs, Noida. By the impugned order following has been held:- "ORDER i) I order to recover Duty of Customs amounting to Rs. 1,22,87,551/-(Rupees One Crore Twenty-Two Lacs Eighty Seven Thousand Five Hundred Fifty-One Only) from M/s Khanna Traders & Engineers, D-26, Site-IV, Surajpur Industrial Area, Greater Noida-201308 under Sub Section (4) of Section 28 of the Customs Act, 1962 along with applicable interest under Section 28AA of the Customs Act, 1962. ii) I impose penalty of Rs. 1,22,87,551/- (Rupees One Crore Twenty-Two Lacs Eighty Seven Thousand Five Hundred Fifty-One Only) to M/s Khanna Traders & Engineers, D-26, Site-IV, Surajpur Industrial Area, Greater Noida-2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicated as per the impugned Order-in-Original referred in para 1 above. 2.6 Aggrieved appellant-assessee have filed this appeal. 2.7 Revenue have also filed appeal in the matter for inclusion of the interest amount in the penalty imposed under Section 114A of the Act. 3.1 We have heard Shri R K Philips & Shri Apoorv Philips, Advocate for the appellant-assessee and Shri A.K. Choudhary, Authorised Representative for the revenue. 3.2 Arguing for the appellant-assessee learned Counsel submits that- ● Order has been passed in gross violation of principles of natural justice. ● Show cause notice dated 20.11.2018 was never received by him and on receipt of the hearing notice he made inquiries in the matter and on 25.06.202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that, if they fall to submit reply within the stipulated time, the matter may be decided ex-parte based on available documents. 5. DISCUSSIONS & FINDINGS:- 5.1 I have carefully gone through the Show Cause Notice Issued to M/s Khanna Traders & Engineers and other documents related to the case, evidences on record and submission made during the personal hearing. Since the party has failed to submit their reply by 04.08.2020 as assured at the time of personal hearing, I take up the case for ex-parte decision on the basis of documents available on record. Taking up the Show Cause Notice for adjudication, I observed that the core issues to be determined in the instant case are as under:- (i) Whether the benefit of Notification No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CTH) 80011090 from Malaysia manufactured by M/s Malaysia Smelting Corporation, Malaysia. The imported goods attract BCD @ 5% and CVD @ 12.5%. The details of the imports are as under:- 1 2 3 4 5 6 7 Bill of Entry No. 6505508 7871402 6239379 6943705 8193110 6239379 Dated 26.08.2016 19.12.2016 04.08.2016 03.10.2016 16.01.2017 04.08.16 Wt. (MT) 25 25 25 25 25 25 Ass.Value 31024086 38170300 31687616 33824048 37532157 31687616 Total Duty Payable (in Rs. ) 7264444.857 8937766.597 7419813.724 7920069.959 8788342.222 7419814 Total Duty Paid (in Rs. ) 5395088.5 6637815.1 5510476.3 5882002 6526842.1 5510476 Diff. Duty (in Rs. ) 1869356.357 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 negative conditions connected by "or" are construed as cumulative and "or" is read as "nor" or "and". [See : Principles of Statutory Interpretation by Justice G.P. Singh, 14th Edition.] 11. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble 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 20-9-2002 is concerned, suffice it to say that the aforesaid 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 (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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