Calcutta High Court
Commissioner Of Customs Port Kolkata vs M/S Emami Agrotech Ltd on 31 July, 2025
Author: T.S. Sivagnanam
Bench: T.S. Sivagnanam
2025:CHC-OS:138-DB
IN THE HIGH COURT AT CALCUTTA
SPECIAL JURISDICTION (CUSTOMS)
ORIGINAL SIDE
Present:-
THE HON'BLE CHIEF JUSTICE T.S. SIVAGNANAM
AND
HON'BLE JUSTICE CHAITALI CHATTERJEE DAS
CUSTA 15 OF 2025
GA/2/2025
COMMISSIONER OF CUSTOMS PORT KOLKATA
VS.
M/S EMAMI AGROTECH LTD
For the Appellant : Ms. Manasi Mukherjee, Adv. and Sr. Std. Counsel
Mr. Bijitish Mukherjee, Adv.
For the Respondent : Mr. Abhratosh Majumder, Sr. Adv.
Mr. Rahul Dhanuka, Adv.
Mr. Niraj Baheti, Adv.
Last Heard on : 23.06.2025 Judgement on : 31.07.2025 CHAITALI CHATTERJEE DAS, J:-
1. This appeal has been filed by the Commissioner of Customs (Port) against
the final Order no. 76173 of 2024 dated 26.06.2024 passed by the Customs,
Excise and Service Tax Appellate Tribunal , Eastern zonal bench, Kolkata
under Section 130 of the Customs Act, 1962 (the Act) against Customs
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Appeal No.75759 of 2023 arising out of Order-in-Appeal No.
KOL/CUS/port/ks/572/2023 dated 28.0 7.2023 passed by the
Commissioner (Appeals) of customs, Kolkata.
Heard the submissions of both the Learned Counsels.
The fact of the case is as follows:-
2. On September 6, 2021, and September 20, 2020 M/S Emami Agrotech
Limited, filed 7 Into Bond Bills of Entry for warehousing in respect of imported
goods, namely crude palm of edible grade. On September 21, 2021 and
September 28, 2021, the importers filed Ex- Bond Bills of Entry for home
consumption against above mentioned Into Bond Bills of Entry. The customs
duty involved in the Ex-Bond Bills of Entry was of ₹47.82 crores. On October
8, 2021, the importer filed an application for withdrawal/cancellation of the
said Ex- Bond Bills of Entry filed on September 21, 2021 and September 28,
2021 and reinstatement of Into Bond Bill of Entry.
3. On October 13,, 2021, by way of notification number 48/2021 – CUS and
notification number 49/2021 – CUS, rate of basic custom duty(BCD) was
reduced from 2.5% to Nil and rate of agriculture infrastructure development
CESS (AIDC) was reduced from 20% to 7.5% with effect from October 14,
2021. The importer made a request on October 8, 2021, which was rejected on
October 27 2021 by the Assistant Commissioner of Customs, (Apprising
Group-1) on the ground that the application dated October 8, 2021 was
inadequate. The importer that is M/S Emami Agro Tech Limited, submitted his
explanation and provided chartered accountant certificate, and details
regarding the depressed production and sales during the festival period. Once
again, such request was rejected on December 4, 2021 with on the ground that
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the cancellation of Ex- Bond Bills Entries would result in substantial revenue
loss to the department.
4. The said rejection order dated October 27, 2021 and December 4, 2021, were
challenged by the importer before the High Court at Calcutta by filing writ
petition and vide order dated January 11, 2022 the High Court set aside the
said orders and directed to release the goods on payment of 50% of duty in
cash and balance 50% by way of bank guarantee, subject to the satisfaction of
the adjudicating authority.
5. In view of the order of the High Court, the importer approached the concerned
apprising group with a demand draft for a sum of ₹23.91 crores and bank
guarantee of an equivalent amount along with applicable interest of ₹52.38
lakhs for a period up to January 17, 2022, in compliance to section 61(2) of
the Customs Act.
6. The prayer, of the importer for cancellation of Ex- Bond Bills of Entry was
further denied vide order dated January 21, 2022 holding that it would entail
a revenue loss of ₹22.25Crores , if a fresh bill of entry for home consumption is
filed on January 17, 2022 for clearance of the said warehouse goods. This
order was challenged before the High Court and was subsequently disposed of
on the ground of having an alternate appellate remedy. Meantime, a further
notification number 16/2022 – CUS dated 12.2.22 came into effect and further
reduced the rate of AIDC from 7.5% to 5%. Vide an order dated March 1, 2022,
the Hon’ble Division bench of this Court set aside the order dated January 21,
2022 and directed the concerned authorities to release the subject goods and
pass a speaking order.
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7. The importer filed manual Bill of Entry for home consumption by assessing the
custom duty to the tune of 20.26crores and a draft of ₹1.02crores towards the
payment of interest for the period from January 18, 2022 to March 10, 2022
on the basis of which the warehouse goods were released. On September 8,
2022, the adjudicating authority passed the order, rejecting the application for
cancellation of Ex-bond bills of entry by holding that the same is not covered
under section 46(5) of the Act or under any other express provision of the
statute. On challenge by the importer, the Commissioner of Appeals held that
if the bills of entry for home consumption was allowed to be
withdrawn/cancelled and the fresh bills of entry for home consumption was
allowed for clearance of the impugned goods from warehouse, there would be a
substantial loss of revenue. Being aggrieved, thereby an appeal was filed before
the CESTAT which was allowed by the Tribunal with the following observation,
A) bill of entry is to be filed under section 46 of the
customs act and section 46 (5) of the act, provides that
the proper officer may permit substitution of bill of entry
for home consumption for a bill of entry for warehousing
or vice versa if there is no loss of revenue and absence of
fraudulent intention.
B) Section 68 of the customs act provides for clearance of
warehouse goods for home consumption, but the
applicant filed the bills of entry for home consumption.
When neither the duty was paid, nor any order of our
clearance of such goods for home consumption was made
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by the proper officer. In the meantime, the applicant filed
an application for withdrawal of Ex-Bond Bills of Entry
and reinstatement of Into Bond Bills of Entry.
C) When the importer filed the application for
withdrawal/cancellation of the Ex- bond bills of entry,
there was no change of rate of duty till three months and
in terms of section 61(2) of the act, the importer was not
required to pay any interest.
D) As the revenue did not take any action on the
application filed by the appellant and later on the rate of
duty was reduced. It cannot be said that there is loss of
revenue due to reduction in rate of duty later on.
Furthermore no fraudulent act was proved against the
appellant/importer.
8. The learned counsel appearing on behalf of the Revenue argued that section 46
(5) does not deal with the cancellation of any bill of entry, but deals with mere
modification of the type code of bill of entry on importation. In the instant
case, type code of bill of entry is not getting modified on importation, but issue
is cancellation of the same bill of entry after it has already been warehoused
and bill of entry for home consumption has already been filed, self-assessed for
release therefore, importer’s request for withdrawal/cancellation of Ex- bond
bill of entry and reinstatement of into Bond bill of entry cannot be considered
under section 46(5) of the Customs Act, 1962. It is further submitted that in
terms of Section 68(b) and section 17 and 18 of the Customs Act once the self-
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assessment was made and no objection is raised by the authority against the
self-assessment, the assessment reaches finality leaving only option with the
importer, to pay the duty as per section 15 of the Customs Act and such duty
to be paid on the very date of filing of the bill of entry. Instead of paying the
duty, the importer filed application for withdrawal/cancellation of the said 10
bills of entry on October 8,, 2021, after a substantial lapse of time. It is
submitted that in case of customs duty to be paid on importation and
exportation the date and time of determination of duty is to be strictly
construed.
9. Further stand taken by the learned advocate for the Revenue is that the
importer’s request for cancellation of bills of entry filed for home consumption
after warehousing, in absence of relinquishment of title would amount to
substitution of bills of entry for home consumption with bills of entry for
warehousing. If cancellation of Impugned bill of entry is carried out/permitted,
then imported goods will continue to remain under warehousing and in due
course of time, importer will again file bill of entry under Section 68 (a) of read
with section 46 of the Customs Act, for removal of the impugned goods from
warehouse which will create a situation where there would be duplicate or two
sets of bills of entry for release of goods which is neither statutory nor
technically possible. It is their specific case that just after 6 days from the date
of importer’s application for cancellation of the said bills of entry, the rate of
basic custom duty was reduced from 2.5% to NIL and AIDC was reduced from
20% to 7.5%, therefore, if new bills of entry for home consumption is filed that
will be under reduced rate of BCD and AICD and accordingly, it would incur
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huge revenue loss of ₹ 22.25 Crores approximately and hence the request of
the importer cannot be permitted in terms of 46(5) of Customs Act.
10. It is submitted the importer’s application for substitution or withdrawal of
bill of entry actually relates to the application related to bill of entry note on
importation, but bills of entry, which is filed after importation at the stage of
release from warehouse for home consumption, which is already self-assessed
without a reassessment is final in the eye of law.
11. The further contention of the Learned Counsel is that section 15(1) (b) has
been substituted by Act 32 of 2003 when, the date for determination of duty
and tariff evaluation of imported good in case of goods cleared from a
warehouse under section 68 is on the date on which a bill of entry for home
consumption in respect of such good is presented under the Section.
12. In the instant case 6 Ex- bond bills of entry were filed on September 21,
2021 and 4 Ex- bond bills of entry were filed on September 28, 2021. The
former 6 bills of entry where assessed on September 21, 2021 and the later 4
bills of entry were assessed on September 28, 21 based on tariff value, so by
that date the said bills of entry where finally assessed and quantum of duty
vis-a-vis the said bills of entry were ascertained. Therefore, the importer has
taken this route of filing subsequent application for substitution or
cancellation of bills of entry with an intent to avoid payment of duty, interest
and penalty, and hence the order passed by the tribunal is not tenable in the
eye of law and should be set aside. The learned advocate on behalf of the
revenue relied on the decisions reported in Jain Irrigation System Versus
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Commissioner of Customs 1, Bharat Commerce and Indus Limited Versus
Collector of Customs 2 Collector of Customs, Madras Versus
Tungabhadra fibres Ltd 3 and Khattar enterprises (P)Ltd Versus Collector
of Customs, Calcutta 4 .
13. The learned advocate of the respondent, on the other hand argued that the
submissions made by the revenue regarding the provisions of section 46(1) is
limited to bill of entry for home consumption is incorrect encompasses in itself
bill of entry for warehousing. Secondly, Section 46.(5) of Custom Act, 1962
allows substitution of a bill of entry for home consumption with a bill of entry
for warehousing and vice versa provided the following conditions are fulfilled;
a) The interests of the revenue are not prejudicially affected and b) There
should be no fraudulent intention.
14. It is contended by the learned Senior Advocate that the Parliament in its own
legislative wisdom, provided for substitution of bill of entry for home
consumption for a bill of entry for warehousing or vice versa. The use of the
expression ‘vice versa’ is of pivotal importance. The interpretation sought to be
given by the revenue would in effect subtract the expression vice versa. It is
argued that the revenue is trying to persuade this court to interpret section 46(5)
in a manner which would result in judicial legislation, both the conditions
enumerated under section 46(5) to be satisfied if the request for substitution is to
be allowed. In the present case, both the conditions are satisfied and therefore
denial of the request for substitution was illegal. Furthermore Section 46(5) is a
1
(2005) 189 E.L.T (BOM)
2
(1997) 11 SCC 62
3
1994 (71) E.L.T 655 (MAD)
4
1997 (94) E.L.T. 454 (SC)
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trade facilitation measure, and the request for substitution can only be rejected
in the event the above mentioned two conditions are not satisfied.
15. It is strenuously argued by the Learned Senior Counsel that even if it is
assumed that the conditions provided in section 46(5) is disjunctive or
standalone in nature the reasoning given in the Order-in-Appeal that the
substitution would cause loss of revenue is of no substance as there was no
change of the rate of duty on the date when the application for substitution was
made by the respondent. That part the revenue never made any case or made
any ground that there was any fraudulent intention at the time of making
application under section 46(5) rather the respondent duly corroborated its
reasons with facts and figures supported by a certificate from chartered
accountant.
16. The learned advocate relied upon a decision reported in Priyanka Overseas
Pvt. Ltd. vs UI 5 on the point that on the date of making the application, there
was no loss to revenue and therefore interest of the revenue was not prejudicially
affected as on the date of making such application. Accordingly, it is prayed that
since none of the contentions raised by the revenue are tenable in the eye of law,
therefore, the instant appeal is liable to be dismissed with cost. What is
submission of both the learned advocates.
Analysis
17. In this case the substantial questions of law taken by the revenue are as
follows;
5
1991 (51) ELT 185 (SC)
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(a) The Learned Tribunal failed to consider that section
46 (5) does not deal with the cancellation of any bill of
entry but just deals with mere modification of the type
code of bill of entry. Since in this case, type code of bill of
entry is not getting modified but cancellation of the same
is under consideration, therefore, importer’s request for
withdrawal/cancellation of Ex-bond Bill of Entry and
reinstatement of into-bond Bill of Entry cannot be
considered under section 46 (5) of the Customs Act,1962.
(b) The Learned Tribunal failed to appreciate that, the
application of importer for withdrawal/cancellation of Ex-
bond Bill of Entry and reinstatement of Into-bond Bill of
Entry needs to be considered in terms of Section 46(5) of
the Customs Act, 1962. Section 46(5) deals with
substitution of a “bill of entry for home consumption” for
“bill of entry for warehousing” of vice versa, then in this
scenario, no new bill of entry gets created or no existing
bill of entry gets modified ,i.e. from code ‘H’ to code ‘W’ or
vice versa. Now, in the instant matter, when importer’s
application is perused then it appears that the said
application does not amount to modification of type code
of the said Bills of Entry but rather amount to
cancellation of the same. But, section 46 (5) does not deal
with the cancellation of any bill of entry but just deals
with mere modification of the type code of bill of entry.
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Since in this case, type code of bill of entry is not getting
modified but cancellation of the same is under
consideration, therefore, based on discussion made
supra, importer’s request for withdrawal/cancellation of
Ex-bond Bill of entry and reinstatement of Into-bond Bill
of Entry cannot be considered under section 46(5) of the
Customs Act, 1962.
(c) The Learned Tribunal failed to consider that, there is
no specific provision in Customs Act, 1962, for permitting
the withdrawal/cancellation of Bills of Entry for home
consumption, filed for clearance under section 68 of the
Customs Act, except in case where the importer wants to
relinquish his title to the goods. Sub proviso to Section
68 of the Customs Act, 1962 states that the owner of any
warehoused goods may, at any time before an order for
clearance of goods for home consumption has been made,
relinquish his title to the goods upon payment of
penalties, etc. and upon such relinquishment, he shall
not be liable to pay duty. In the instant case, the Bills of
Entry for home consumption shall be cancelled only after
relinquishment. However, in the present case, the
importer is not relinquishing the title of goods, therefore,
cancellation of Ex-bond bills of entry cannot be permitted
under law.
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(d) The Learned Tribunal failed to consider that, in terms
of section 68(b) of the Customs Act, once the assessment
was finalized, the only option left with the importer, was
to pay duty. However, instead of paying the duty,
importer filed application for withdrawal/cancellation of
the said 10 (ten) bills of entry on 08.10.2021.
(e) The Learned Tribunal failed to appreciate that, in the
instant case, just after 06 (six) days from the date of
importer’s application for cancellation of the said bills of
entry, the rate of Basis Customs Duty was reduced from
2.5% to NIL and AIDC was reduced from 20% to 7.5% ,
therefore if new bills of entry for home consumptions filed
then they will be filed at a reduced rate of BCD and AIDC
and accordingly, it may incur huge revenue loss of Rs.
22.25 crores approximately to the department and
therefore, said application cannot be permitted in terms
of Section 46(5) of Customs Act.
18. The matter pertains to 7 number Into Bond Bills of Entry for warehousing
in respect of imported goods, namely Crude palm oil of edible grade filed by the
respondent on September 6, 2021 and 29, 2021, also of 10 Ex Bond bills of
entry for home consumption against the above mentioned into bond bills of
entry which were filed on September 21, 2021 and 28 September 2021. The
duty involved in the said Ex bond bills of entry was 47.82 crores. The
application for withdrawal/cancellation of the said Ex bond bills of entry as filed
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by the respondent was rejected on October 8, 2021. In the meantime, a
Notification was published being notification number 48/2021 – CUS dated
October 13, 2021 and Notification Number 49/2020 1 CUS dated October 13,
2021, whereby rate of basic custom duty.(BCD) was reduced from 2.5% to NIL
and the rate of Agriculture Infrastructure Development. Cess (AIDC) was
reduced from 20% to 7.5% effective from October 14,, 2021, which means after
the application for withdrawal/cancellation of the Ex- bond bills of entry filed by
the respondent. The reason to reject the request of the respondent dated
October 8, 2021 by the Assistant Commissioner of Custom, Apprising group – 1
was that the application was inadequate and importer submitted his
explanation and provided, Chartered Accountant certificate certifying the
depressed production and sales during the festive period, which was rejected on
December 4, 2021 on the ground that cancellation of the Ex-Bond Bills Entries
would result in substantial revenue loss to the department. The order of
rejection dated October 27, 2021 and December 4, 2021,were set aside by the
Hon’ble Division Bench of this court, by order dated January 11, 2022 and
directed to release the goods on payment of 50% of duty in cash and balance
50% by way of bank guarantee subject to the satisfaction of the adjudicating
authority.
19. Therefore, it is clear that the reason assigned by the revenue for not
considering the request by the importer dated October 2021 was not considered
by this Court. It is further apparent from the record that the importer in
compliance with such order of this Court approached the concerned Appraising
group with a demand draft for a sum of ₹23.9.crores and bank guarantee, for an
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equivalent amount along with applicable interest of ₹52.38 lakhs for a period up
to January 17,, 2022 in compliance with Section 61(2) of the Custom Act. This
prayer of the importer for cancellation of Ex-bond Bill of Entry was reflected by
order dated January 21, 2022 holding that if the same is to be considered it
would cause loss of revenue of ₹22.25.crores. The Hon’ble Division Bench of this
Court by its order dated March 1, 2022, after setting aside the order dated
January 21, 2022 directed the concerned authorities to release the goods and to
pass a speaking order. In view of the direction, the importer filed manual bill of
entry for home consumption by assessing the customs duty to the tune of
₹20.26 crores and a demand draft of ₹1.02 crores towards the payment of
interest for the period from January 18, 2022 to February 3, 2022, based on
which the warehouse goods were released. The adjudicating authority passed
the order, rejecting the application for cancellation of Ex- bond bills of entry on
the ground that the same is not covered by section 46(5) of the act. The learned
advocate of the respondent tried to impress upon this court that Section 46(5)of
the Act allows substitution of bill of entry for home consumption with a bill of
entry for warehousing and vice versa subject to fulfilment of two grounds and
the authority failed to prove any fraudulent intention on the part of this
respondent. So far the interest of revenue not to be prejudicially affected is
concerned, it was pointed out that the application was made on October 8, 2021
and reduction of duties of custom took place only with effect from October 14,
2021 vide notification dated October 13, 2021. The application was filed within
the prescribed period of 90 days which is the date of making the application,
there was no loss to revenue and therefore the revenue was not prejudicially
affected as on the date of making the application.
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20. In the decision as relied upon by the learned advocate of the respondent in
Priyanka overseas Private Limited (supra) it was observed by the Hon’ble
Supreme Court that
‘The question is whether the Appellant is liable to
pay duty on the balance quantity of 6746.468 of
Palm Karnel and if so, what should be the rate of
duty. In determining the question, it must be borne
in mind the statutory principal that if a party
discharge its liability by complying with the
requirement of law and present paper for clearance
of goods, it is obligatory on the revenue authorities to
pass the order immediately thereon. If the revenue
authorities either refuse to pass the order on some
erroneous or imaginary grounds or on account of any
conception of law, the department cannot take
advantage of its own wrong in demanding higher
rate of duty from the importer. Under sections 68
and 71 of the act, goods placed in a warehouse can
be taken out only after clearance for home
consumption. Admittedly, the appellant had done its
part of legal duty by presenting bills of entry and
complying with section 68(a) of the act on 28 – 1-
1988. But the Customs Officer refused to release the
goods on an erroneous assumption that the
applicant was liable to pay redemption fine, and
since it had not paid the amount, the goods were not
liable to be released. The High Court held that the
imposition of redemption fine was non-est and the
petitioner was within its right to claim release of
goods without paying any redemption fine, on the
day, it complied with the formalities under section
68 of the act. Section 68.(c) of the act, prescribes an
official function which was not performed by the
custom authorities due to entertainment of a wrong
and illegal notion regarding the payment of
redemption fine which resulted into a wrong order
by the department. In the circumstances, the
department cannot be allowed to take advantage of
its own wrongful and illegal act. In moulding relief,
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this court has always applied principles of equity in
order to do complete justice between the parties’.
The facts of this case speaks of otherwise as the importer did not discharge his
liability by complying with the requirement of law by presenting proper
documents initially but submitted after the request was refused more so the
facts of the situation, the case of Priyanka overseas Pvt.Ltd is not applicable in
the instant case having different nature of dispute.
21. The relevant provision as enumerated in Section 68 of the Custom Act
reads as follows:
The importer of any warehouse goods may clear
them for whom consumption, if-
a) a bill of entry for home consumption in respect
of such goods has been presented in the prescribed
form;
b) the import duty leviable on such goods and all
penalties, rent, interest and other charges payable
in respect of such goods have been paid: and
c) an order for clearance of such goods for home
consumption has been made by the proper officer:
[Provided that the order referred to in clause (c) may
also be made electronically through the customs
automated system on the basis of risk evaluation
through appropriate selectin criteria:
Provided further that][ Substituted by Finance
Act,2018 (Act No.13 of 2018), dated 29.3.2018.]
the owner of any warehoused goods may, at any
time before an order for clearance of goods for home
consumption has been made in respect of such
goods, relinquish his title to the goods upon payment
of rent, interest, other charges and penalties that
may be payable on respect of the goods and upon
such relinquishment, he shall not be liable to pay
duty thereon:
[[Provided also that] [Inserted by Act 21 of 2006,
Section 59 (w.e.f. 18.4.2006).] the owner of any suchPage 16 of 38
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warehoused goods shall not be allowed to relinquish
his title to such goods regarding which an offence
appears to have been committed under this Act or
any other law for the time being in force.
22. In the case of Jain Irrigation System ,accepted the request for
conversion of the said Bond Bill of Entry into home consumption bill of entry
so that on assessment the goods could be cleared on payment of duty and it
was assessed but the applicant never paid the duty within the stipulated
period nor cleared the consignment thereafter on payment of duty with
interest and after a gap of 2 years the applicant by a letter requested for
reconversion of the assessed bill of entry into Bond bill of entry with a view to
clear the goods under the 100% EOU scheme without payment of duty. The
Hon’ble Supreme Court did not accept the contentions of the applicant and
observed that on the basis of conscious decision taken by the applicant the
conversion was allowed and the converted bills of entry was assessed to duty
so it was obligatory on the part of the applicant to clear the duties.
23. In the case on hand the Tribunal observed that provision of section 47(2)
is not applicable in this case as after filing the Ex-bond bill of entry on 21.9.21
& 28.9.21 the condition of section 68 of the Act were not satisfied and as no
assessment was done for clearance of goods in question ,therefore the
application dated 8.10.21 is required to be disposed off.
24. It was further observed that on 8.10.2021 there was no change in the
rate of duty and if the said application filed by the importer would have been
considered and disposed of on the same date, the importer in that event was
entitled for withdrawal /cancellation of Ex-Bond Bill of Entry and
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reinstatement of Into Bond Bills of Entry. This observation of the Tribunal
does not lay down the correct principal as in terms of section 68(b) and section
17 and 18 of the Act, once the self-assessment was made and no objection is
raised by the Authority against the self-assessment, the assessment reaches
finality and the only option left to the importer was to pay the duty which was
not complied.
25. In Tungabhadra Fibres Ltd which was relied upon it was observed that
“section 68 of the Act provides for clearance of Warehouse Goods for home
consumption and states that the importer of any warehouse goods may clear
them for home consumption in the circumstances mentioned in clause (a) to (c) .
Clause (a) provides for the presentation of a bill of entry for home consumption in
respect of warehouse goods. Clause (b) states that on payment of import duty
leviable under section 68(b) it is seen from section 15 (1) (b) of the Act ,that in
the case of goods cleared from a warehouse under section 68 the rate of duty
and tariff valuation ,if any applicable to the imported goods shall be ,the rate
and valuation in force on the date on which the goods were actually removed
from the warehouse”
26. In this case the goods were not removed nor the payment was made and
the Customs Duty involved in the said Ex-Bond Bills of Entry was Rs. 47.82
Crores. The importer made request on 21.9.21 and 28.9.21 for cancellation
which was rejected on 8.10.21 on the ground that the application was
inadequate and then on 13.10.21 the notification was published whereby the
rate of Basic Customs Duty BCD was reduced from 2.5% to Nil and AIDC was
reduced from 20% to 7.5% giving effect from 14.10.21.
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In Khattar Enterprises(P) Ltd (supra) Collector of Customs, Calcutta (Supra)
the question falls for consideration regarding applicability of the Notification of
198 (b) whereby partial exemption admissible in respect of the basic customs
duty and auxiliary customs duty on wood and articles of wood falling under
Heading No. 40.08 of the customs tariff under Notification No. 62-Cus. dated
March 17, 1995 and No. 311/86-Cus. dated May 13, 1986 was withdrawn. It
was held
“In the present case the original Bill of Entry was submitted
by the appellant on October 09, 1986 was for warehousing.
The said Bill of Entry was treated as for home consumption
only on October 23, 1986 by the Assistant Collector. This
does not mean that the Bill of Entry for the goods for home
consumption has to be treated to have been presented on
October 09, 1986. Since the Bill of Entry was noted for home
consumption on October 23, 1986 it has to be presented for
that purpose on October 23, 1986. The duty was therefore
payable on the basis of the rates in force on October 23,
1986”.
This observation certainly goes in favour of the revenue.
27. The learned Senior Advocate on behalf of the Importer submitted that the
contentions of the Revenue are not tenable as the request for substitution was
made because of less production and dispatches on account of festive seasons
as was supported with the certificate from the chartered accountant. Fact
remains the certificate of Chartered Accountant was submitted after the prayer
was turned down on the ground of inadequate document on 8.10.21. The
further argument that section 46(5) allows the substitution of bill of Entry for
home consumption with bill of Entry for warehousing and vice versa subject to
the condition specified therein and had the request was allowed for
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substitution on the date of presentation of subsequent bill of entry for home
consumption for clearance would have been relevant. However this argument
found not to have been any basis as in terms of Section 68(b) and section 17
and 18 of the Act, once the self-assessment was made and no objection is
raised by the authority against the self-assessment, the assessment reaches
finality and only option left is to pay the duty as per section 15 of the Customs
Act. The former 6 bills of entry was assessed on 28.9.21 based on the tariff
value as of 28.9.21 the said bills were finally assessed and quantum of duty
vis-à-vis the said bills of entry were ascertained. Hence the impugned order
passed by the learned Tribunal calls for interference.
28. Therefore in the above facts and circumstances this appeal filed by the
Revenue stands allowed and the order passed by the learned Tribunal is set
aside. The substantial questions of law are answered in favour of the revenue.
29. Photostat copy of this judgement if applied, shall be made available upon
compliance of all formalities.
(CHAITALI CHATTERJEE DAS, J.)
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T.S. SIVAGNANAM, CJ:- (Concurring)
30. I have gone through the judgment prepared by sister Hon’ble Justice
Chaitali Chatterjee (Das) and I am agreeable to the reasoning and the
conclusions arrived at. However, I wish to give additional reasons in support
of the above conclusion.
31. We have heard Ms. Manasi Mukherjee, Learned Senior Standing
Counsel assisted by Mr. Bijitish Mukherjee, learned advocate appearing for
the appellant revenue and Mr. Abhratosh Majumder, Learned Senior
Advocate assisted by Mr. Rahul Dhanuka and Mr. Niraj Baheti, Learned
Advocates appearing for the respondent assessee.
32. It is argued by the Learned Senior Advocate for the respondent that
in sub section (5) of Section 46 of the Act power has been conferred on the
proper officer of satisfied that the interest of the revenue are not
prejudicially affected and that there was no fraudulent intension, the proper
officer may permit substitution of the bill of entry for home consumption for
a bill of entry for warehousing vice versa, thus the statute is clear that both
condition are required to be satisfied while rejecting request for substitution.
In other words it is contended that the interest of revenue should not be
prejudicially affected and there is no fraudulent intention. Therefore, the
stand taken by the proper officer to reject the request for substitution on the
alleged ground that interest of revenue will be affected is unsustainable in
law. It is submitted that this argument is without prejudice to the argument
that in the respondents and the order of rejection was rightly set aside.
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33. The first submission made on behalf of the respondent is with
regard to the interpretation of Section 46(5) of the Act. It is submitted that
the contention of the revenue that the provisions of Section 46(1) is limited
to bill of entry for home consumption is incorrect as the provisions
encompasses in itself bill of entry for warehousing. Further Section 46(5)
allows substitution of a bill of entry for home consumption with a bill of
entry for warehousing and vice-versa provided the following two conditions
are met namely (a) the interest of revenue are prejudicial or prejudicially
affected and (b) there was no fraudulent intention. Therefore it is submitted
that both conditions enumerated under Section 46(5) are to be satisfied if
the request for substitution is to be looked and in the case on hand both
conditions are satisfied and therefore denial of the request for substitution
was wholly illegal. It is further contended that Section 46(5) is a trade
felicitation measure and request for substitution can only be rejected in the
event the twin conditions are not satisfied. Thus, the interpretation would
revolve upon usage of the expression “and” in Section 46(5) of the Act. The
said provision states that if the proper officer is satisfied that the interest of
the revenue are not prejudicially affected and that there was no fraudulent
intention, he may permit substitution of a bill of entry for home
consumption for a bill of entry for warehousing or vice-versa. Therefore the
question to be decided is whether the expression “and” used in Sub Section
(5) of Section 46 would mean that the two conditions are conductive or
whether they are disjunctive.
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34. We have heard the Learned Senior Standing Counsel on the above
submission.
35. To decide the issue, we take note of Section 46(5) which is as
follows:-
Section 46: Entry of goods on importation
(1)……….
Proviso……..
Proviso………
(2)…………….
(3)……………
Proviso………
Proviso……..
Proviso……..
(4)…………..
(4A)………..
(5) If the proper officer is satisfied that the interests of
revenue are not prejudicially affected and that there
was no fraudulent intention, he may permit substitution
of a bill of entry for home consumption for a bill of entry
for warehousing or vice versa.
36. The above provision does confer power on the proper officer to
permit substitution of bill of entry for home consumption for a bill of entry
for warehousing or vice versa. However, this power can be exercised strictly
in accordance with the statutory provision. The first requirement is the
satisfaction of the proper officer that the interest of revenue are not
prejudicially affected and that there was no fraudulent intension. The
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statute uses the word “and” and the question would be whether the two
parameters (i.e.) “interest of revenue are not prejudicially affected” and “that
there was no fraudulent intension” has to be read disjunctively or
conjunctively.
37. It has been held in Hyderabad Asbestos Cement Products and
Others Versus Union of India and Others 6 that the word “or” is normally
disjuncture and “and” is normally conductive, but at times they are read
vice-versa to give effect to the manifest intension of the legislature as
disclosed from the content. (see R.S. Nayak and Others Versus A.R.
Antulay and others 7)
38. In R. Versus Oakes 8, it has been held that if the literal meaning of
the words produces an unintelligible or absurd result “and” may be read for
“or” and “or” for and even though the result of so modifying is less
favourable to the subject provided that the intension of the legislature is
otherwise quite clear.
39. In Punjab Produce and Trading Company Limited Versus
Commissioner of Income Tax, West Bengal II, Calcutta 9 it was held that
a distinction may be made between positive and negative condition
prescribed by a statute for acquiring a right or benefit. Positive conditions
separated by “or” are read in the alternative but negative conditions
6
(2000) 1 SCC 426
7
(1984) 2 SCC 183
8
(1959) 2 All Er 92
9
(1971) 2 SCC 540
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connected by “or” are construed cumulative and “or” is read as “nor” or
“and”.
40. In Ishwar Singh Bindra Versus State of Uttar Pradesh 10 the
Hon’ble Supreme Court held the word “and” as generally a cumulative sense
requiring fulfilment of all the conditions that it joins together, and herein it
is the antithesis of “or”. Sometimes, however, even in such a connection, it
is, by force of context read as “or”. In Raghunath International Limited
Versus Union of India 11, it was held that it is a well established principle
of statutory interpretation that the word “or” is normally disjunctive and the
word “and” is normally conjunctive. Both of them could be read as vice-
versa but the interpretation was adopted only where the intention of the
legislature was manifest. Maxwell on Interpretation of Statutes Edition IX,
states that the fundamental principles of construction is that words used in
a statute must be understood in their normal grammatical sense. In that
sense, the word “and” is used as a conjunction, this however, will not
prevent the court from departing from the ordinary grammatical meaning of
a word if it appears, from the context or a consideration of the other
provisions of the statute that it was the intention of the legislature to give it
another meaning. Similarly if the ordinary grammatical meaning of a word
results in creating an absurdity or an anomaly or of rendering the legislation
of no effect, a narrower or a broader meaning may be given to the word “or”
it may be construed in such a way as to obviate the absurdity or anomaly on
the principle that it could not have been the intention of legislature to create
10
AIR 1968 SC 1450
11
2012 (280) ELT 321 (All)
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absurdities or anomalies or to render its enactments of no effect. In such a
situation, the word “and” may well be construed in a disjunctive sense and
be read as “or’.
41. The above principle was followed by the Hon’ble Supreme Court in
Babu Manmohan Das Shah Versus Bishun Das 12. In Reserve Bank of
India Versus Peerless General Finance Investment Company Limited 13,
it was held that while interpreting the provisions of the statute, it is
necessary that the textual interpretation should be matched with the
contextual one. The Act must be looked at as a whole and it must be
discovered what each section, each clause, each phrase and each word is
meant and designed to say as to fit into the scheme of the entire Act. No part
of a statute and no word of a statute can be construed in isolation. Statutes
have to be construed so that every word has a place and everything is in its
place.
42. In Popatlal Shah Versus State of Madras 14, the Hon’ble
Supreme Court observed that it is settled rule of construction that to
ascertain the legislative intent all the constituent parts of a statute are to be
taken together and each word, phrase, or sentence is to be construed in the
light of the general purpose and object of the Act itself. The title and
preamble whatever the value might be aids to the construction of a statute,
undoubtedly, throw light on the intent and design of the legislature and
indicate the scope and the purpose of the legislation itself.
12
AIR 1967 SC 643
13
1987 (1) SCC 424
14
AIR 1953 SC 274
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43. Justice G.P. Singh in Principles of Statutory Interpretation, XII
Edition, has observed that a statute must be read as a whole as words are to
be understood in their context. Extension of this rule of context permits
reference to other statutes in Pari Materia i.e. statutes dealing with the same
subject matter or forming part of the same system. This principle was
applied by the Hon’ble Supreme Court in R.S. Raghunath Versus State of
Karnataka 15 wherein the Hon’ble Supreme Court held that the court must
ascertain the intention of the legislature by directing its attention not merely
to the clauses to be construed but to the entire statutes; it must compare
the clause with other parts of law and setting in which the clause to be
interpreted occurs.
44. It is settled legal principle that there can be no universal rule laid
down as to whether enactments shall be considered directory only or
obligatory with implied nullification for disobedience. It is the duty of the
court to try to get at the real intention of the legislature by carefully
attending to the whole scope of the statute. (refer to Shashikant Singh
Versus Tarekshwar Singh and Others 16; Gujarat Assembly Matter 17;
Bhavnagar University Versus Palitana Sugar Mills Private Limited and
Others 18)
45. Further the question as to whether a statute is mandatory or
directly depends on the intent of the legislature and not upon the language
in which the intent is clothed. The meaning and the intention of the
15
(1992) 1 SCC 335
16
(2002) 5 SCC 738
17
(2002) 8 SCC 237
18
(2003) 2 SCC 111
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legislature must govern and these are to be ascertained not from the
phraseology of the provision, but also by considering its nature, its design
and the consequence which would follow from construing it the one way or
the other. (refer to State of M.P. and Others Versus Pradeep Kumar and
Others 19 Owners and Parties Interested in M.V. ValiPero Versus
Fernandeo Lopez and Others 20)
46. Thus having steered clear of the legal position we have to read the
Customs Act, 1962 as a whole and Sub Section (5) of Section 46 cannot be
read in isolation. The Hon’ble Supreme Court in Commissioner of Customs
(Preventive) Mumbai Versus M. Ambalal and Company 21 considered the
object and scheme of the Customs Act and it was held that it is an Act to
consolidate and amend the laws relating to customs. The Act aims to sternly
and expeditiously deal with the smuggled goods, and curb the dents on the
revenue thus costs. The Act provides for confiscation of goods and
conveyance and imposition of penalty when any goods which are imported
contrary to any provision imposed by or under the Act or any other law for
the time being in force. Thus, the scheme of the Customs Act postulates
curbing the dents on the revenue which may be caused owing to several
reasons which are covered under the various provisions of the Act. Thus, by
applying the above legal principles and reading the Customs Act as a whole
the power conferred on the proper officer under Sub Section (5) of Section
46 is not absolute. The first requirement is the satisfaction of the officer that
the interest of the revenue are not prejudicially affected and that there was
19
(2000) 7 SCC 372
20
(1989) 4 SCC 671
21
(2011) 2 SCC 74
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no fraudulent intention and in such an event the proper officer may permit
substitution of the bill of entry for home consumption for a bill of entry for
warehousing or vice-versa. Therefore, the expression “and” used in Sub
Section (5) of Section 46 has to be read as “or” in other words the two
conditions namely interest of revenue is not prejudicially affected and there
should be no fraudulent intention should be disjunctive and not
conjunctive. This interpretation alone would be in consonance with the
scheme of the Customs Act. Therefore, the contention of the
respondent/importer that both conditions have to be simultaneously
satisfied does not merit acceptance. That apart, the power under Sub
Section (5) of Section 46 provides for the proper officer upon his satisfaction,
that either of the two conditions are satisfied he may permit the substitution
of a bill of entry for home consumption for a bill of entry for warehousing or
vice-versa. The expression “may” used does not make the provisions
mandatory because the expression “may” has to be read along with the
satisfaction which has to be recorded by the proper officer. Therefore, the
statutory provision provides sufficient “play in the joints” by giving enough
discretion to the proper officer to permit substitution or not. An alternate
submission was made by the Learned Senior Advocate appearing for the
respondent that even assuming the conditions provided in Section 46(5) are
disjunctive or stand-alone the reasoning given that the substitution would
occasion loss of revenue is of no substance as there was no change of duty
on the date when the application for substitution was made by the
respondent.
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47. Firstly, it has to be seen as to whether the respondent importer
could have submitted a letter for cancellation of their earlier bill of entry for
home consumption and to permit them to substitute the bill of entry for
warehousing. The argument was that the department has clarified by
issuing Circular no. 15 of 2009-Cus dated 12.05.2009 that interest is not
payable in terms of Sub Section (2) of Section 61 of the Act if the application
for substitution was made within the prescribed period of 90 days.
Therefore, it is submitted that the letter for cancellation of the bill of entry
for home consumption was submitted on 08.10.2021 whereas the rate of
duty was reduced only by notification dated 13.10.2021 with effect from
14.10.2021 and therefore when the request was made by the importer on
08.10.2021, the rate of duty remained the same and there is no loss of
revenue.
48. The above submissions does not merit acceptance for the following
reasons. Section 47 of the Act deals with clearance of goods for home
consumption. Sub Section (1) states that where the proper officer is satisfied
that any goods entered for home consumption are not prohibited goods and
the importer has paid the import duty, if any, assessed thereon and any
charges payable under the Act in respect of the same, the proper officer may
make an order permitting clearance of the goods for home consumption. The
first proviso states that provided such an order may also be made
electronically through the customs automated system on the basis of the
risk evaluation through appropriate selection criteria. The second proviso
further provides that the Central Government may by notification in the
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official gazette, permit certain class of importers to make deferred payment
of the said duty or any charges in such manner as may be provided by
rules. Sub Section (2) of Section 47 deals with the liability of the importer to
pay import duty. Clause (a) states that the importer shall pay the import
duty on the date of the presentation of the bill of entry in the case of self-
assessment.
49. In the instant case, the first set of bill of entries were filed on
06.09.2021 and 20.09.2021 for warehousing of the consignments. On
21.09.2021 and 28.09.2021, the respondent filed 10 bills of entries for home
consumption in connection with the 7 bill of entries for warehousing on the
EDI Portal intending to clear the goods for home consumption. This bill of
entry was based on a self-assessment made by importer. The department
did not raise any objection regarding self-assessment or the rate of duty
payable on the imported goods. If such be the fact situation in terms of
clause (a) of Section 47 (2) the importer has to pay the import duty on the
date of presentation of the bill of entry. Thus, the bill of entry for home
consumption based upon self-assessment having not been questioned by
the department is deemed to have been assessed and finality has been
arrived at. In such circumstances merely because interest is not payable in
terms of Section 61 (2) of the Act cannot advance the case of the
respondent/importer. If the importer is statutorily bound to pay the duty on
the date of presentation of the bill of entry in the case of bills of entry which
are self-assessed and the respondent importer having failed to do so, cannot
seek for cancellation of the said bill of entry that to by way of a letter dated
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08.10.2021. In other words, the proper officer would loose jurisdiction to
exercise his power under Sub Section (5) of Section 46 as the bill of entry
which was presented on a self-assessment basis having been accepted, the
question of substitution would not arise that to by way of a letter to cancel
the Bill of entry which has already been assessed on which the import duty
was payable by respondent importer on the date of which self-assessed bill
of entry was presented. Therefore, the proper officer cannot exercise his
power under Sub Section (5) of Section 46 and accede to the request made
by the respondent in their letter dated 08.10.2021 to cancel the assessed
bill of entry for home consumption. Therefore, if such is the interpretation, if
the prayer sought for by the respondent importer had been acceded to, it
would prejudicially affect the interest of revenue.
50. It was contended that no order was passed by the authority
immediately on the request made by their letter dated 08.10.2021. Had an
order been passed acceding to the request, it would have been an order
against the legal principle. In this regard, Section 68 of the Act, should also
be taken note of which deals with clearance of warehouse goods for home
consumption. Therefore, it has to be held that a self-assessed bill of entry
having been accepted by the department, cannot be cancelled at the
instance of the importer as in terms of Section 47(2)(a), the importer shall
pay the import duty on the date of presentation of the bill of entry on self-
assessment basis.
51. At this stage, it is relevant to note that for the goods warehoused
vide 7 warehousing bill of entry, the respondent/importer filed 10 bills of
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entry (6 on 21.09.2021 and 4 on 28.09.2021) for home consumption
clearance under Section 68 of the Act. The bill of entries were pending for
payment of duty since the date of completion of assessment and after 17
days of completion of assessment of all six bills of entry for home
consumption dated 21.09.2021 and 10 days of completion of assessment of
4 bills of entry for home consumption dated 28.09.2021, the respondent
importer submitted a letter dated 08.10.2021 for cancellation of the 10 bills
of entry.
52. As mentioned above, the bills of entries were self-assessed by the
respondent importer and the department has accepted importer’s
assessment without questioning the same or making any alterations and
therefore the assessment has been completed as of 21.09.2021 and
28.09.2021 under such circumstances question of reopening the same
would not arise.
53. Section 15 of the Act deals with date for determination of rate of
duty and tariff valuation of the imported goods. Sub Section (1) of Section 15
states that the rate of duty and tariff valuation if any, applicable to any
imported goods shall be the rate and valuation in force mentioned in
Clauses (a) (b) and (c). For the case on hand clause (b) will apply which
states that in case of goods cleared from warehouse under Section 68, the
rate of duty shall be the rate and valuation in force on the date on which the
bill of entry for home consumption in respect of such goods is presented
under that Section. In this regard, the decision of the Hon’ble Supreme
Court in M/s. Shah Devchand and Company Versus Union of India and
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Others 22 is to be taken into consideration. Therefore, the relevant date for
computing the date of customs duty in the case on hand is on the date when
the respondent importer filed the bill of entry for home consumption i.e. on
21.09.2021/28.09.2021 as the assessment is complete and in terms of
Section 68 (b) of the Act, the respondent was required to pay duty and
applicable interest also. The respondent cannot dispute the legal principles
that once the assessment has been completed there is no other option left
for the respondent except to pay the duty and applicable interest which has
been levied if the goods remain in warehouse beyond a period of 90 days
from the date of out of charge of corresponding warehouse bill of entry in
terms of Section 61(2) of the Act. Furthermore, the request made by the
respondent vide their letter dated 08.10.2021 for cancellation of the bills of
entry for home consumption is not feasible of consideration as the scheme of
the Act does not provide for such a contingency where the self-assessed bill
of entry has been accepted by the department and the assessment has been
completed. The only exception is when the importer relinquishes his title to
the goods as provided in the second proviso in Section 68 of the Act. Such a
contingency does not arise in the case of the respondent as there is no
relinquishment of the title of the goods. Therefore, the authorities were
justified in rejecting the request made by the respondent as if acceded to the
revenue loss would be approximately Rs. 22.25 crores. Thus, the demand
made by the respondent/importer vide letter dated 08.10.2021 was beyond
the scope of the provisions of the Customs Act as the Act does not provide
for any withdrawal or cancellation of the bill of entry for home consumption
22
AIR 1991 SC 1931
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under Section 68 of the Act and the only exception being when there is
relinquishment of the title to the goods.
54. In Jain Irrigation System Versus Commissioner of Customs 23
in more or less similar factual circumstances, the Hon’ble Division Bench
held that the conversion of the bill of entry was permitted and the converted
bill of entry was assessed duty and it was obligatory on the part of the
applicant therein to clear the goods within seven days of receiving the
assessed bill of entry failing which it was obligatory on the part of applicant
to clear the same on payment of duty with interest and therefore, the Court
approved the decision of the tribunal which affirmed the view taken by the
assessing officer rejecting the re-conversion of bill of entry under Section
46(5) of the Act. It is submitted on behalf of the respondent that the said
decision is factually distinguishable because request for substitution was
made after a period of two and a half years. In our view, we are required to
look into the legal principle which was laid down in the said decision namely
that conversion was permitted under the converted bill of entry was on duty
and upon such assessment, it became obligatory on the part of the applicant
therein to clear the goods within a specified time and this having not been
done the order of the assessing officer rejecting the re-conversion under
Section 46 (5) was approved. Therefore, the decision would support the
stand taken by the revenue before us.
23
(2005) 189 ELT (Bom)
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55. The decision in Bharat Commerce and Industries Limited Versus
Collector of Customs, Bombay 24 considered as to whether a letter could
be treated as bill of entry for warehousing and it was held that Sub Section
(1) of Section 46 requires presentation of the proper officer of a bill of entry
for home consumption or warehousing in the prescribed form. Sub Section
(2) lays down that the bills of entry shall include all the goods mentioned in
the bill of lading or other receipts given by the carrier to the consignor. Sub
Section (4) of Section 46 requires the importer to make a declaration as to
the truth of the contents of such bill of entry and to produce documents in
support on such declaration. Therefore, it was held that it is difficult to see
in the context of these provisions how the letter could be treated as a bill of
entry for warehousing as what Sub Section (5) contemplates is the
substitution of one bill of entry for another. This decision supports the stand
taken in this judgment in the preceding paragraphs.
56. The decision in Khattar Enterprises Private Limited Versus
Collector of Customs, Kolkata 25 would also support the case of the
appellant revenue where the Hon’ble Supreme Court after examining Section
15, Section 46 and Section 68 held that these provisions show that in
respect of the goods entered for home consumption the relevant date for the
purpose of ascertaining the rate of duty is the date on which the bill of entry
in respect of such goods was presented under Section 46.
57. The above aspects of the matter as to whether at all the proper
officer could act upon a letter given by the respondent importer dated
24
(1997) 93 ELT 653 (SC)
25
(1997) 94 ELT 454 (SC)
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08.10.2021 was not examined by the tribunal while passing the impugned
order. That apart, the learned tribunal appears to have been convinced with
the case of the respondent importer in the light of the circular issued by the
CBEC dated 12.05.2009 to state that for clearance of the goods under
Section 68 the provisions of Section 47(2) is not attracted. The learned
tribunal in our considered view, committed an error in not addressing the
legal issue which fell for consideration, whether the power under Sub
Section (5) of Section 46 was exercisable, in the facts and circumstances of
the case and whether the interest is payable or not is not the question which
is germane to the issue which fell for consideration before the learned
tribunal. The learned tribunal has allowed the application filed by the
respondent importer for withdraw/cancellation of the Ex. bond bill of entry
and re-instatement of Into-bond bill of entry, however it has not referred to
under which provisions of law or in other words under which provisions of
the Customs Act this was permissible. Further the finding that there was no
loss of revenue also is devoid of any reasons and the learned tribunal was
swayed by the date of the respondents letter dated 08.10.2021 stating that
on the said date there were no change of rate of duty. Unfortunately, the
questions is not as to what was the rate of duty on 08.10.2021 but the
question was whether a request by way of a letter dated 08.10.2021 for
cancellation of self-assessed bill of entry for home consumption was
maintainable under the provision of the Customs Act. Therefore, this finding
rendered by the tribunal also does not satisfy the legal principle. Hence, the
learned tribunal erred in allowing the respondent’s appeal and the
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impugned order, calls for interference and accordingly interfered with and
set aside.
58. In the result, the appeal filed by the revenue is allowed and the
substantial questions of law are answered in favour of the revenue. No costs.
(T.S. SIVAGNANAM, CJ.)
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