Page 126 - GSTL_3rd September 2020_Vol 40_Part 1

60 GST LAW TIMES [ Vol. 40
5.2 It is pertinent to note that the sub-rule 3(i) and sub-rule 3(ii)
are separated by a semicolon (;) followed by the disjunctive, ‘or’.
The use of semicolon (;), the punctuation mark is to separate two
closely related independent clauses, ‘or’ is a particle’ used to con-
nect words, phrases or classes representing alternatives [J. Jaya-
lalitha v. UOI - (1999) 5 SCC 138]. Only if the phrasing of the legal
provision is such that in actuality ‘and’ is intended, should it be
examined whether the alternatives separated by ‘or’ are not mutu-
ally exclusive. The Courts may construe ‘or’ as ‘and’, only if they
find from the context that the wrong word must have been used.
[Ranchhoddas Atmaram v. UOI, AIR 1961 SC 935; Firoj Farukee v.
State of West Bengal, AIR 1972 SC 2141] . However, in respect of the
sub-rule 3(i) and sub-rule 3(ii) ibid, there should not be any such
confusion or doubt, since those two sub-rules are separated not by
just a particle ‘or’ but also by a semicolon (;), thus creating an addi-
tional wall for conveying mutual exclusivity between the two sub
rules. There is also no basis for suggesting that the use of ‘or’ be-
tween these sub-rules conveys the meaning ‘or both’. For example,
to be able to impose both a fine and a penalty, one would need to
add ‘or both’ to the end of the phrase. That surely is not the case
here.
5.3 Viewed in this context, it is but obvious that the legislature
intended the said sub-rules 3(i) and 3(ii) to be two distinct and
separate alternatives, with distinctively different qualifying factors
and conditionalities.
5.4 In sub-rule 3(i), the assessee has an option to avail of a par-
ticular notification or otherwise; when such assessee takes such
option, he will be required to pay an amount equivalent to Cenvat
credit, if any,
…………………
6. In the event, the findings and decision of the lower appellate
authority to the contrary in the impugned order is not on sound
legal footing. The impugned order then cannot sustain and will
require to be set aside, which we hereby do. Appeal is allowed
with consequential benefits, if any, as per law.
7. Following these 2 decisions and indulging the facts at length,
we are of the considered opinion that the ratio laid down in the
judgments are squarely applicable in this case, and therefore, we al-
low the appeal.”
7. After going through the facts of the case which is similar, to the above
we propose to apply the same in case at hand, we allow the appeal.”
8. In view of the above judgments, it is settled that after reversal of
credit in respect of input, input in process and input contained in final products
whatever balance is left shall lapse only when the Notification is unconditional.
As regards, the judgment relied upon by the Learned Authorised Representative,
on careful consideration, we find that the issue involved in such case was eligibil-
ity of exemption Notification No. 30/2004-C.E. Though some observation was
made by the Hon’ble Bench, however, no final decision was given on the said
issue, as the said issue was not the subject matter of the appeal.
9. As regards the judgment in the case of Supertex Industries Ltd. (supra)
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