No Penalty for Unrecorded Finished Goods in Factory without Evidence of Clandestine Removal

Sharma Steel Rolling Mills Vs Commissioner (CESTAT Delhi)

No Penalty for Unrecorded Finished Goods in Factory without Evidence of Clandestine Removal and personal penalty on the employee need not be imposed as he is acting under direction of his employer and there is no evidence of personal benefit.

Introduction: In a recent decision by the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) Delhi, the case of Sharma Steel Rolling Mills vs Commissioner has shed light on the issue of imposing penalties on the unaccounted excess stock of finished goods in a factory. The Tribunal overturned the penalties imposed on Sharma Steel Rolling Mills and its authorized signatory, Shri Mukesh Kumawat. The central argument in this case revolved around the absence of sufficient evidence to prove the intentional evasion of Central Excise duty.

Background: During a visit by Central Excise officers to the premises of Sharma Steel Rolling Mills on September 7, 2012, a stock of 34.95 MT of MS ingots and 181.355 MT of MS Angles, allegedly in excess of the recorded stock, was found. The officers contended that this excess stock was maintained with the intent to clear goods without paying Central Excise duty. Subsequently, a show cause notice was issued, proposing confiscation of the seized goods and imposing penalties under Rule 25(1)(b) and Rule 26(1) of the Central Excise Rules, 2002.

Key Arguments and Findings:

Absence of Malafide Intention: The appellant’s counsel argued that penalties under Rule 25 and 26 cannot be imposed without establishing a mala fide intention towards clandestine removal of excess goods. The judgment in Micro Super Cables (P) Ltd. vs Commissioner of Central Excise, Delhi-II was cited, emphasizing that the circumstances of the present case differed significantly. The counsel further referred to the decision of the Hon’ble High Court of Delhi in Commissioner of Central Excise, Delhi-II vs. Ganpati Rolling Pvt. Ltd., highlighting the need for malafide intent to evoke penalties.

Insufficient Corroborative Evidence: The appellant contended that the stock estimation was done merely by eye estimation, and no actual physical verification was conducted. The reliance on statements recorded under Section 14 of the Central Excise Act, 1944, was challenged, asserting that the statements were retracted later, and the impugned order did not give due importance to the retractions. The appellant argued that there was a lack of sufficient evidence to establish the serious allegations of intentional evasion.

Legal Interpretation: The Tribunal focused on the crucial link between Rule 25 of the Central Excise Rules and Section 11AC of the Central Excise Act. It emphasized that for the imposition of penalties under Rule 25(1)(b), the conditions of Section 11AC must be satisfied. Quoting relevant sections, the Tribunal clarified that the penalty should be linked to the intentional evasion of duty, and mere violation of Rule 10 of the Central Excise Rules, 2002 (relating to maintenance of proper records) does not automatically imply malafide intent.

Rule 26(1) and Personal Penalty: The Tribunal noted that Rule 26(1) imposes a penalty on any person involved in transporting, removing, or dealing with excisable goods knowingly or with reason to believe they are liable for confiscation. However, it considered precedents that suggested personal penalties on employees need not be imposed when they are acting under the direction of their employer, and there is no evidence of personal benefit.

Conclusion: In conclusion, the Tribunal set aside the penalties imposed on Sharma Steel Rolling Mills and its authorized signatory, emphasizing the lack of sufficient evidence to establish malafide intention and intentional evasion of Central Excise duty. The decision reaffirms the importance of tying penalties to specific violations and intentional acts, providing clarity on the legal interpretation of relevant rules and sections. 

FULL TEXT OF THE CESTAT DELHI ORDER

The present appeal has been filed against the impugned Order-in-Appeal No. 135(SM)/CE/JPR/2021 dated 16.11.2021 vide which the Commissioner (Appeals) upheld the confiscation of seized and upheld the penalties of Rs. 5,00,000/- (Rupees five lakh only) and Rs.2,50,000/- (Rupees two lakh and fifty thousand only) imposed on M/s. Sharma Steel Rolling Mills (hereinafter referred to as appellant no. 1) and Shri Mukesh Kumawat (referred to as appellant no. 2) respectively.

2. The brief facts are that during the visit of the Central Excise officers at the premises of M/s Sharma Steel Rolling Mills on 07.09.2012, stock of 34.95 MT of MS ingots valued at Rs.11,14,905/- and 181.355 MT of MS Angles valued at Rs.64,92,509/- was allegedly found in excess to the recorded stock. The Central Excise officers alleged that the excess stock was kept unaccounted with the intent to clear without payment of Central Excise duty. Hence, the same was seized under the relevant provisions. Consequent to the seizure, show cause notice dated 05.03.2013 was issued, proposing confiscation of the seized goods under Rule 25(1)(b) of the Central Excise Rules, 2002 (hereinafter referred to as ‘the Rules’) and imposition of penalty under Rule 25(1)(b) of the Rules on appellant no.1 and penalty under Rule 26(1) of the Rules upon the appellant. The Original Authority adjudicated the notice, and the Commissioner (Appeals) upheld the Order-in-Original vide the impugned order.

3. The learned Counsel for the appellant No. 1 & appellant No.2 submitted that the impugned Order-in-Appeal No. 135-136(SM)CE /JPR/2021 dated 16.11.2021 passed by the Commissioner (Appeals), Central Excise and Central Goods & Service Tax, Jaipur had been passed without appreciating the true legal and factual position.

4. The learned Counsel contended that no penalty can be imposed under Rule 25 and 26 of Central Excise Rules, 2002 unless mala fide intention towards clandestine removal of excess goods is He contended that the adjudicating officer relied upon the judgment of Micro Super Cables (P) Ltd. Unit-II Vs. Commissioner of Central Excise, Delhi-II – [2012 (283) ELT 303 (Tr.-Del.)] while imposing penalty upon the appellant. The learned Counsel submitted that the aforesaid judgment deals with non-production of statutory records like production register, raw material register, invoice book etc. and relates to completely different set of facts and is not relevant to the facts of the present case. He further submitted that the position of law relating to penalties which can be imposed under Rule 25 and 26 of Central Excise Rules, 2002 had been decided by Hon’ble High Court of Delhi’s judgment in Commissioner of Central Excise, Delhi-II Vs. Ganpati Rolling Pvt. Ltd. [MANU/DE/1353/2016: 2016 (338) ELT 587]. The learned Counsel further contended that the decision dated 08.01.2014 of Hon’ble Jharkhand High Court in the case of M/s Dayal Alloy & Steel Castings Vs. CCE, Ranchi, which in the case of Commissioner of Central Excise, Delhi-II Vs. Ganpati Rolling Pvt. Ltd. [MANU/DE/1353/2016: 2016 (338) ELT 587] the Hon’ble High Court of Delhi had clarified that in the case of Dayal Alloys (supra) the High Court had interpreted the unamended Rule 173Q of the Central Excise Rules, 1944 which did not open with the words “subject to Section 11AC”. The learned Counsel further stated that no malafide intention of clandestine removal of excess goods had been established, and such allegations are serious in nature, and requires sufficient corroborative evidence. However, no sufficient evidence had been produced to establish these allegations.

5. The learned Counsel submitted that in the present case, stock estimation had been done merely by eye estimation method. Taking into account the fact that the officers of Anti -Evasion started search/investigation proceedings on 07.09.2012 at 11:15 hrs. which lasted for 3 hours and 45 minutes. The Counsel submitted that it was nowhere mentioned in the Panchnama as to how officers of Anti-Evasion measured the entire quantity of M.S. Ingot, M.S. Channels and M.S. Angles whose total quantity is 798.100 (MT). Further, the affidavits of the Panchas establishes that on 07.09.2012, no actual physical stock verification was done by the officers of the department. As the stock verification had been done based on the eye estimation, the stock verification cannot be relied upon. He further submitted that the impugned order had relied on the statements of the appellant recorded under Section 14 of the Central Excise Act, 1944 despite the fact that the statements were later retracted. The impugned order has not given any importance to the retraction of the statements.

6. The learned Authorized Representative reiterated the discussions and findings given in the Order-in-Original and Order- in-Appeal. He submitted that the ingots and angles were found excess in the premises of the factory without any entry in the statutory records. The Authorized Representative submitted that Shri Mukesh Kumawat, authorized signatory of the unit was present during the Panchnama proceedings, and had agreed with the manner and method of stock verification, by appending his signature on Panchnama and stock verification. The retraction of the statement was merely an afterthought, and had been done after more than a year after tendering it. He contended that weighment on the basis of which physical stock verification report was prepared were not provided is irrelevant since Shri Mukesh Kumawat himself had stated in his statement that the appellant had violated Rule 10 of the Central Excise Rules, 2002 which provides for maintenance of proper records, on daily basis, in a legible manner indicating the particulars regarding description of the goods produced or manufactured. Unaccounted finished goods were liable for confiscation in terms of Rule 25 of Central Excise Rules 2002. He contended that the penalties have been rightfully imposed under Rule 25(1) on Sharma Steel Rolling Mills and under Rule 26(1) on Shri Mukesh Kumawat, authorized signatory of M/s. Sharma Steel Rolling Mills.

7. I have heard the rival contentions. The issue before me is whether the imposition of redemption fine of Rs 15 lakhs on the seized goods and the imposition of penalties on appellant no 1 & 2 is

8. I address the first issue relating to confiscation of goods. Ingots and angles were found excess in the premises of the factory without any entry in the statutory records, which has been admitted by Shri Mukesh Kumawat, authorized signatory of the unit, who was present during the Panchnama proceedings. I note that the confiscation of the unaccounted MS Ingots and Angles has been ordered in the impugned order under the belief that the same was intended to be cleared clandestinely. There is no doubt that some stock was found in excess over the declared stock and were not found entered in the daily stock account of the appellant, but whether or not it was a deliberate act of the appellant within intent to remove the unrecorded goods without issue of invoice or without payment of duty has to be decided based on cogent evidence. This burden needs to be discharged by the Department. Whether a mere violation of Rule 10 of the Central Excise Act amounts to deliberate intention to evade is again to be proved by the Department. I note that there is no such evidence which has been led by the On the contrary, I note that in a decision, this Tribunal has held that ‘to account for’ means explaining the correct position of the excisable goods as per law and does not relate to making correct entries in account books. In the case of Dhanraj Enterprises vs CCE [2006 (199) ELT 518(Tri. SMB)], this Tribunal held that non-accountable of goods in RG-1 register does not, ipso facto indicate intention on the part of the assessee to evade payment of duty and accordingly, there cannot be a case to confiscate goods or to even impose penalty. Even improper accounting is denying the mean clandestine removal, in the absence of circumstantial evidence proving the same. In view of the above, I set aside the redemption fine imposed on the goods.

9. I now take up the issue relating to imposition of penalty on appellant No. 1. A reading of the legal provisions makes it clear is that for imposition of penalty under Rule 25(1)(b), the condition of Section 11AC of the Central Excises Act, 1944 has to be satisfied. The said Section and Rule is reproduced herein after:

11AC. Penalty for short-levy or non-levy of duty in certain cases.–

(1) The amount of penalty for non-levy or short-levy or non-payment or short-payment or erroneous refund shall be as follows–

(a) where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, for any reason other than the reason of fraud or collusion or any wilful mis-statement or suppression of facts or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, the person who is liable to pay duty as determined under sub-section (10) of Section 11-A shall also be liable to pay a penalty not exceeding ten per cent of the duty so determined or Rupees Five thousand, whichever is higher:

Provided that where such duty and interest payable under Section 11-AA is paid either before the issue of show cause notice or within thirty days of issue of show cause notice, no penalty shall be payable by the person liable to pay duty or the person who has paid the duty and all proceedings in respect of said duty and interest shall be deemed to be concluded;

(b) where any duty as determined under sub-section (10) of Section 11A and the interest payable thereon under Section 11AA in respect of transactions referred to in clause (a) is paid within thirty days of the date of communication of the order of the Central Excise Officer who has determined such duty, the amount of penalty liable to be paid by such person shall be twenty-five per cent of the penalty imposed, subject to the condition that such reduced penalty is also paid within the period so specified;

(c) where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by reason of fraud or collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, the person who is liable to pay duty as determined under sub-section (10) of Section 11A shall also be liable to pay a penalty equal to the duty so determined:

Provided that in respect of the cases where the details relating to such transactions are recorded in the specified record for the period beginning with the 8th April, 2011 up to the date on which the Finance Bill, 2015 receives the assent of the President (both days inclusive), the penalty shall be fifty per cent of the duty so determined;

(d) where any duty demanded in a show cause notice and the interest payable thereon under Section 11AA, issued in respect of transactions referred to in clause (c), is paid within thirty days of the communication of show cause notice, the amount of penalty liable to be paid by such person shall be fifteen per cent. of the duty demanded, subject to the condition that such reduced penalty is also paid within the period so specified and all proceedings in respect of the said duty, interest and penalty shall be deemed to be concluded;

(e) where any duty as determined under sub-section (10) of Section 11A and the interest payable thereon under Section 11AA in respect of transactions referred to in clause (c) is paid within thirty days of the date of communication of the order of the Central Excise Officer who has determined such duty, the amount of penalty liable to be paid by such person shall be twenty-five per cent of the duty so determined, subject to the condition that such reduced penalty is also paid within the period so specified.

(2) Where the appellate authority or tribunal or court modifies the amount of duty of excise determined by the Central Excise Officer under sub-section (10) of Section 11A, then, the amount of penalty payable under clause (c) of sub-section (1) and the interest payable under Section 11AA shall stand modified accordingly and after taking into account the amount of duty of excise so modified, the person who is liable to pay duty as determined under sub-section (10) of Section 11A shall also be liable to pay such amount of penalty and interest so modified.

(3) Where the amount of duty or penalty is increased by the appellate authority or tribunal or court over the amount determined under sub-section (10) of Section 11A by the Central Excise Officer, the time within which the interest and the reduced penalty is payable under clause (b) or clause (e) of sub-section (1) in relation to such increased amount of duty shall be counted from the date of the order of the appellate authority or Tribunal or court.

Explanation 1.– For the removal of doubts, it is hereby declared that–

(i) any case of non-levy, short-levy, non-payment, short-payment or erroneous refund where no show cause notice has been issued before the date on which the Finance Bill, 2015 receives the assent of the President shall be governed by the provisions of Section 11AC as amended by the Finance Act, 2015;

(ii) any case of non-levy, short-levy, non-payment, short-payment or erroneous refund where show cause notice has been issued but an order determining duty under sub-section (10) of Section 11-A has not been passed before the date on which the Finance Bill, 2015 receives the assent of the President, shall be eligible to closure of proceedings on payment of duty and interest under the proviso to clause (a) of sub­section (1) or on payment of duty, interest and penalty under clause (d) of sub-section (1), subject to the condition that the payment of duty, interest and penalty, as the case may be, is made within thirty days from the date on which the Finance Bill, 2015 receives the assent of the President;

(iii) any case of non-levy, short-levy, non-payment, short-payment or erroneous refund where an order determining duty under sub-section (10) of Section 11-A is passed after the date on which the Finance Bill, 2015 receives the assent of the President shall be eligible to payment of reduced penalty under clause (b) or clause (e) of sub-section (1), subject to the condition that the payment of duty, interest and penalty is made within thirty days of the communication of the order.

Explanation 2.– For the purposes of this section, the expression “specified records” means records maintained by the person chargeable with the duty in accordance with any law for the time being in force and includes computerised records.]

“RULE 25. Confiscation and penalty. — (1) Subject to the provisions of section 11AC of the Act, if any producer, manufacturer, registered person of a warehouse [or an importer who issues an invoice on which CENVAT credit can be taken] or a registered dealer, (a) removes any excisable goods in contravention of any of the provisions of these rules or the notifications issued under these rules; or

(b) does not account for any excisable goods produced or manufactured or stored by him; or

(c) engages in the manufacture, production or storage of any excisable goods without having applied for the registration certificate required under section 6 of the Act; or

(d) contravenes any of the provisions of these rules or the notifications issued under these rules with intent to evade payment of duty, then, all such goods shall be liable to confiscation and the producer or manufacturer or registered person of the warehouse [or an importer who issues an invoice on which CENVAT credit can be taken] or a registered dealer, as the case may be, shall be liable to a penalty not exceeding the duty on the excisable goods in respect of which any contravention of the nature referred to in clause (a) or clause (b) or clause (c) or clause (d) has been committed, or [five thousand rupees], whichever is greater.

An order under sub-rule (1) shall be issued by the Central (2) Excise Officer, following the principles of natural justice. Penalty for certain offences.

10. I note that the essential ingredient that is required to be satisfied for invoking Section 11AC and Rule 25(1) is suppression, collusion etc. which has to be established with an intent to evade payment of duty. In the instant case, it is noted that excess quantity of MS Ingots and MS Angles were found which had not been entered in the statutory books, which is liable for penalty. However, other than the statement, no other corroborative evidence has been brought on record to show that there was an intent to evade. There is also no evidence brought out to establish that the appellant No.1 had indulged in similar evasion earlier. I note that the Learned Counsel has submitted that no malafide intention of clandestine removal of excess goods had been established, and sufficient corroborative evidence has not been established to prove the intention to evade. I am inclined to agree with this contention. In this regard, I find that the Delhi High Court has upheld this Tribunal’s decision in the case of Ganpati Rolling Mills [2016 (338) E.L.T. 587 (Del.)] held as follows:-

9. The opening words of Rule 25 is “Subject to the provisions of Section 11AC of the CE Act” and not an non obstante clause which would have begun with the words “Notwithstanding the provisions of Section 11AC of the CE Act”. It is plain that the CE Rules are subordinate legislation and have to abide the discipline of the statute under which they are made. Where Rule 25(1) expressly begins with “Subject to the provisions of Section 11AC of the CE Act”, obviously the requirements of Section 11AC will have to constitute a condition subject to which the power under Rule 25 can be exercised. Rule 25 of the CE Rules itself came up for interpretation before the Gujarat High Court in Saurashtra Cement Ltd. (supra) wherein Para 17 it was observed as under:

“17. It is also to be borne in mind that Rule 25 starts with the word “Subject to the provisions of Section 11AC…..”. Section 11AC of the Central Excise Act deals with penalty for short levy or non-levy of duty in certain cases. It says that where any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded by reasons of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of this Act or of the Rules made thereunder with intent to evade payment of duty, the person who is liable to pay duty as determined under sub­section (2) of Section 11AC, shall also be liable to pay a penalty equal to the duty so determined. For the purpose of invoking Section 11AC of the Act, the condition precedent is that the duty has not been levied, or paid or short-levied or short-paid or the refund is erroneously granted by reasons of fraud, collusion or any wilful misstatement or suppression of facts. If these ingredients are not present, penalty under Section 11AC cannot be levied. Since Rule 25 can be invoked subject to the provisions of Section 11AC of the Act, as a natural corollary, the ingredients mentioned in Section 11AC are also required to be considered while determining the question of levying of penalty under Rule 25 of the Central Excise Rules.”

10. In other words, if the ingredients of Section 11AC are not shown to be fulfilled, the penalty under Section 11AC cannot be levied. Therefore, given the wording of Rule 25 of the CE Rules, the ingredients mentioned in Section 11AC have to be considered before determining the question of penalty. In the instant case it is not in dispute that the show cause notice (‘SCN’) made no reference to Section 11AC and, therefore, there was no occasion to adjudicate the issue of imposition of the penalty under Section 11AC of the

11. In Prince Multiplast Pvt. Ltd. (supra) the Gujarat High Court was considering Rule173Q of the Central Excise Rules, 1944 (CE Rules, 1944) which begins with the expression “subject to the provisions contained in Section 11AC of the Act and sub-rule (4) of Rule 57-I and sub-rule (6) of Rule 57-U”. After referring to the judgment of the Supreme Court in S.N. Chandrashekhar v. State of Karnataka, (2006) 3 SCC 208 and Ashok Leyland v. State of Tamil Nadu, (2004) 3 SCC 1, the Gujarat High Court interpreted Rule 173Q as under:

“20. Thus as laid down by the Supreme Court the use of the words “subject to” has reference to effectuating the intention of the law and the correct meaning, is “conditional upon”. Rule 173Q opens with the words “subject to the provisions contained in Section 11AC of the Act and sub-rule (4) of Rule 57-I and sub-rule (6) of Rule 57- U”. Thus, confiscation of goods and levy of penalty under Rule 173Q of the Rules is conditional upon the requirements of Section 11AC and sub-rule (4) of Rule 57-I and sub-rule (6) of Rule 57-U being satisfied. Thus, the words “subject to” used in the said rule express a limitation on the power to confiscate goods and levy of penalty under the said rule.”

12. The Court finds that the Full Bench of the CESTAT which decided the Respondent’s case in 2014 relied on the decision of the Punjab & Haryana High Court in S.K. Sacks (P) Ltd. v. Commissioner of Central Excise (supra), but made no reference to the either of the decisions of the Gujarat High Court or the above noted decisions of the Supreme Court. As far as the decision of the Punjab & Haryana High Court in S.K. Sacks (P) Ltd. (supra) is concerned, there is no discussion of the expression “subject to Section 11AC” occurring in Rule 25 of the CE Rules, 2002. As far as the decision in Dayal Alloys (supra) is concerned, the High Court there was interpreting the unamended Rule 173Q of the CE Rules, 1944 which did not open with the words “subject to Section 11AC”. Therefore, the said decision too is of no assistance to the Appellant herein. Likewise, when this Court dismissed the appeal against the decision of the Full Bench of the CESTAT in Commissioner of Central Excise, Delhi v. Ganpati Rolling Pvt. Ltd. (supra) as withdrawn, there was obviously no occasion to consider any of the above decisions of the Gujarat High Court, which in the considered view of the Court merit acceptance.

13. In that view of the matter, the Court is unable to find any infirmity in the impugned order of the CESTAT. No substantial question of law arises for determination by the Court.”

11. I find that the Tribunal in the case of Nilesh Steel & Alloy Private Ltd Vs Commissioner of Central Excise, Aurangabad [2008 (229) ELT 399 (Tri-Mum)] observed that penalty should not have been imposed merely because the stock of finished goods are found in the factory without entry in the production register especially, when there is no evidence of clandestine removal. In view of the above settled position, the levy of penalty under Rule 25(1) on the appellant in the instant case cannot be upheld.

12. I now come to the penalty levied under Rule 26(1) on the authorised signatory of the appellant No 2. In order to appreciate the facts and the arguments, I reproduce the rule for ease of reference:

26. Penalty for certain offences.-

(1) Any person who acquires possession of, or is in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with, any excisable goods which he knows or has reason to believe are liable to confiscation under the Act or these rules, shall be liable to a penalty not exceeding the duty on such goods or rupees ¹[two thousand rupees,] whichever is greater.]

³[Provided that where any proceeding for the person liable to pay duty have been concluded under clause (a) or clause (d) of sub-section (1) of section 11AC of the Act in respect of duty, interest and penalty, all proceedings in respect of penalty against other persons, if any, in the said proceedings shall also be deemed to be concluded.]

(2) Any person, who issues-

(i) an excise duty invoice without delivery of the goods specified therein or abets in making such invoice; or

(ii) any other document or abetsin making such document, on the basis of which the user of said invoice or document is likely to take or has taken any ineligible benefit under the Act or the rules made there under like claiming of CENVAT credit under the CENVAT Credit Rules, 2004 or refund,

shall be liable to a penalty not exceeding the amount of such benefit or five thousand rupees, whichever is greater.

12.1 It is noted that the essential ingredients to invoke this Rule is if the person is involved in actual evasion or abets in any manner is consequently liable for penalty. No such evidence is brought on record to support the imposition of penalty under this Rule. I note that this Tribunal had in the case of Carpenter Classic Exim Pvt. Limited [2012 (279) E.L.T. 157 (Tri. – Ahmd.)] had taken a view that personal penalty on the employee need not be imposed as he is acting under the direction of his employer. This decision of the Tribunal has been followed by similar decisions such as Commissioner of Customs, Surat Vs Iqbal Jusub Memon [2012 (279) E.L.T. 157 (Tri. – Ahmd.)]. In the case in hand, there is nothing on record to show that the employee had benefitted by the activities of the appellant No. 1 during the visit of the officers. Therefore, I am inclined to set aside the penalty imposed on appellant No.2.

13. In view of the above discussions, I set aside the impugned order and allow both the appeals.

(pronounced in the court on 8/12/2023)