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TMI Blog2002 (5) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... port Policy reads as under : Import of"45. Printing Machinery. Printing Machinery listed in Appendix I Part-B of- (1) Import-Export Policy 1985-88 will be allowed for import to eligible Actual Users under Open General Licence subject to the conditions laid down. (2) Applications for import of other printing machinery should be made to the Chief Controller of Imports & Exports, New Delhi, where the value of the machinery to be imported does not exceed Rs. 1 crore (c.i.f.) and to the Secretariat for Industrial Approvals, Ministry of Industry, New Delhi where the value exceeds Rs. 1 crore. Printing machinery(3) imported by Projects and Equipment Corporation of India Ltd. under rupee payment arrangements will be distributed to eligible Actual Users by the Projects and Equipment Corporation on the basis of Release Advice issued by the licensing authority. In such cases also import applications should be made to the Chief Controller of Imports & Exports, New Delhi, or the Secretariat for Industrial Approvals, as the case may be." Appendix-I, Part-B contains list of items covered under clause 45 of the Import Policy. The relevant entry reads as under : "(17) Web-fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per cent ad valorem. TABLE Sr. No. Description 1. Web-fed High Speed letter Press Rotary and Web-fed Offset Rotary printing machine having output of 30,000 or more copies per hour. 2. Photo composing machines and key boards thereof. 3. Reflection type densitometers. 4. Proofing presses and photo mechanical proofing system. 5. Hot metal Mono or Lino type composing and casting machine, or composing and casting machine, with or without key boards. The petitioners are claiming that their import is covered by OGL read with Appendix-I, Part-B, Serial No. 11(17) of the Import Policy which covers Web-fed Printing Machines having an output of more than 35,000 copies per hour. 7.It appears that after import of the printing machine, certain documents such as invoice of the machine along with leaflet giving details of the machine in question were submitted by the petitioners to the Customs Department, which has resulted in a Query Memo finding discr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh a write up explaining the relevance of items to the machine. (5) Contract signed between buyer and seller is enclosed. Whereas the original documents are not yet received from the bank. (7) In the meanwhile you may get the goods examined 1st CH. ex-order is given and B/E is enclosed. (6) Description in Bill of entry amplified as desired. (8) Amplified description in B/E to indicate speed. We therefore request you to kindly allow clearance on Second-Check basis. Sd/- Sd/- Signature of the Appraiser Signature of Importer/CHA ORDERS PASSED IN THE GROUP (i) Bond executed/accepted on (ii) Warehousing u/s 49 CA 62 allowed on (iii) Samples despatched to lab on (iv) Any other orders (v) B/E completed on 8.The Customs Department not being satisfied with the aforesaid reply, pending investigation, requested the petitioners vide their letter dated 21st January, 1988 (Exh. 'H') to warehouse the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed version of the machine - Harris Model vis-a-vis Web Offset covered under Bill of Entry No. 3234/84. The petitioners finding no response from the Customs invoked extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, with the following substantial prayer : For a declaration"(a) that the petitioner is in law entitled to import and clear the said printing machine covered by the said Bill of Entry for Home Consumption (Exhibit A hereto) as an Actual User under the Open General Licence." EVENTS DURING PENDENCY OF THE PETITION 12.This Court by an order dated 10th August, 1988, had directed the Customs Authorities to submit a list of the relevant material required by them to the petitioners on or before 17th August, 1988 and directed the petitioners to comply with these requirements on or before 26th August, 1988 and also directed the Customs Authorities to pass appropriate order within one week thereafter. The matter was adjourned to 31st August, 1988. No list of materials as required by the Customs Authorities was ever served on the petitioners and no adjudication order was passed. The learned single Judge Mr. Justice Daud (as he then was), had pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no proceedings pending against the petitioners. Alternatively, he submitted even if there were proceeding pending, if any, the same should not be allowed to be proceeded with. He placed reliance on the judgments of this Court in the case of Universal Generics Pvt. Ltd. v. Union of India, 1993 (68) E.L.T. 27 (Bom.), in Oriole (Exports) Pvt. Ltd. v. Union of India, 1993 (68) E.L.T. 724 (Bom.) and in Nehwa Steel Traders v. Union of India, 1993 (68) E.L.T. 721 (Bom.) to contend that the respondents should not be permitted to complete any such proceeding. He further tried to emphasize the very fact that there was no order of this Court restraining the respondents from issuing show cause notice and to proceed with the process of adjudication. He submitted that 14 years have been passed since the machine was cleared and the dispute only related to the speed of the machine. He relying upon the affidavit dated 25th October, 1988 filed by the Customs contended that in spite of completion of inspection of the consignment on 28th September, 1988 no steps were taken by the Customs and there is nothing in the affidavit to suggest that the inspection of the said consignment revealed anything oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion. He submitted that the technical leaflet furnished by the petitioners along with the bill of entry seeking clearance of the goods specifically mentions that the speed of the imported machine is 25,000 in prints per hour. In other words, it means that the imported machine was capable of printing only 25,000 copies per hour. He further submitted that when the office premises of the petitioners at Bhopal was searched an identical technical leaflet in respect of the same model was found and seized. Even in the said leaflet the speed of the machine was shown as 25,000 copies per hour. However, another leaflet identically in all other aspects to the aforesaid but showing the speed of 36,000 copies per hour was also found and seized. On close examination of the leaflet snowing the speed of 25,000 copies per hour, it was found to be printed for M/s. Harris Graphics, Wed Press 121 Broadway, Dover, New Hampshire and the one showing speed of 36,000 also included the name of representative in India, M/s. S.L. Kulkarni & Co. However, other details were the same. It was not satisfactorily explained by the petitioner as to how a particular machine with the nature of its technical specifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is being used in a printing unit at Bhopal for printing news paper 'Nai Duniya'. He further tried to explain that this Court allowed the clearance of the subject machine under interim order and the petition was kept pending, as such the Customs could not issue show cause notice to the petitioners as the matter was subjudice before this Court. 16.In rejoinder, the learned counsel for the petitioners filed an affidavit dated 19th March, 2002 duly sworn by one Shri Himanshu Jhawar of Bhopal claiming to be the Chief Manager, Finance of the petitioner company. He tried to emphasize that at no point of time did the respondents make any grievance regarding actual test run of the machine as for the first time made in its affidavit dated 26th February, 2002. He asserted that had the respondents wanted to actually see the machine run at the speed claimed by the petitioners, they could have done so at the premises of the petitioners where the machine is run for last 14 years after its clearance was allowed. He denied that any search was carried out at the office of the petitioners at Bhopal as alleged in the affidavit of the respondents dated 26th February, 2002 and requested us to put the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lies on the party asserting a particular fact to be true. The petitioners have invoked the writ jurisdiction of this Court. The petitioners desire this Court to give judgment as to their legal right on existence of facts which they have asserted in the petition. It is therefore for the petitioners to prove that those facts exist. The burden of proof in a proceeding lies on that person who would fail, if no evidence at all was given on either side. Applying this settled principle flowing from section 102 of the Evidence Act. It is the petitioners who would fail in their petition, if no evidence is given on either side. It is the petitioners who desire that this Court should hold that the printing machine imported by them was having capacity to give output of more than 35,000 composite impression or copies per hour, therefore, the burden of proof lies on the petitioners. 20.We may make it clear that the evidence on record referred to by the rival parties basically involves appreciation of disputed questions of fact. We were reluctant to undertake this exercise in our writ jurisdiction keeping in view the guidelines with respect to the exercise of writ jurisdiction laid down by Apex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thought of getting the issue adjudicated through the adjudicating authority by directing the respondents to issue show cause notice under section 11A of the Act, so as to afford reasonable opportunity to both parties to place their case before the adjudicating authority leaving on merits all the rival contentions open, the petitioners vehemently opposed this approach and placed reliance on the judgment of the Apex Court in the case of Gokak Patel Volkart Ltd. v. Collector of Central Excise, Belgaon reported in 1987 (28) E.L.T. 53 (S.C.) so as to contend that show cause notice cannot be issued beyond six months under section 11A of the Act, and that after 14 years, petitioners cannot be asked to face the adjudication process. This is how the petitioners pressed for the decision on merits. 22.The learned counsel for the petitioners contended that this Court would not be justified in dismissing the petition as not maintainable on the ground of availability of alternate remedy especially when the petition was entertained, kept pending for 14 years and when it is being heard on merits. He also raised a contention that the availability of alternate remedy does not affect the jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate "8-24-87" (correct date may be 8-2-87) issued by the manufacturer of the machine M/s. Harris Graphics Corporation, U.S.A. The other part of the document is nothing but a correspondence made by the petitioners, their clearing and holding agent (CHA) and one M/s. S.L. Kulkarni & Co., dealers in printing machinery, projecting themselves to be the Indian agent of M/s. Harris Graphics Corporation, U.S.A. The said second part of the documents can well be described as self serving evidence. 24.The respondents have also filed their affidavit-in-reply and produced certain documents which can also be divided in two parts. One part represents the document in the nature of inspection report based on examination of the entire consignment which was completed on 28th September, 1988; while complying with the part of the directions issued by this Court under order dated 2nd September, 1988. The other part of documents is basically the reproduction of documents supplied by the petitioners themselves. 25.The short question involved in this petition as framed herein-above is whether petitioners have discharged their burden to prove that the subject printing machine imported by them under OGL wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int area or the speed thereof was shown as 25,000 copies. This leaflet has given rise to the query memo dated 16th November, 1987 reproduced in para-7 supra. In reply to the query, no explanation was furnished or no circumstances were brought on record as to how the said leaflet came to be delivered to the Customs along with bill of entry but a fresh copy of another leaflet/catalogue was produced showing speed of the machine (print area) as 36,000. No explanation was furnished, so as to establish any nexus between the subject machine and the said leaflet which showed print area (printing capacity) as 36,000 copies. Both leaflets nowhere prescribe duration of printing period or print area or, in other words, the period or duration during which the machine can give the output of 25,000 or 35,000 copies. It appears that the parties have assumed or taken and/or presumed that the print area is based on the duration of one hour. We, therefore, assume it to be the same. 29.The third document, a leaflet as already referred to hereinabove has come on the scene from the custody of the petitioners in the circumstances enumerated herein above (for the sake of identification it is referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the supplier including the specifications of the goods supplied or purchased coupled with reciprocal obligations incurred by the parties. In our opinion, this document would have been one of the vital, important and best piece of evidence to throw light on the controversy in question. However, this document is not on record. The custody of this document in normal circumstance ought to be with the petitioners. It was thus obligatory on the part of the petitioners to produce this document on record. No explanation is to be found in the petition for omission to file this vital document on record or at leastdenying custody thereof. 31.The petitioner cannot be allowed to rely upon the abstract doctrine of onus of proof and contend that it was no part of its duty to produce this document unless called upon to produce the same. In this behalf the observations of the Apex Court in the case of Hiralal v. Badkulal, AIR 1953 SC 225 are relevant which we quote as under : "Evidence Act (1872), Ss. 101 to 103 and 114 Ill.(g) - Accounts and their non-production [Civil P.C. (1908), O.13, R.2] Suit for recovery of amount due on basis of adjustment of accounts signed by defendant. Defendant den ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itional load due to higher speed, the horse power of the machines are suitably modified. A copy of manufacturer's certificate is enclosed." The manufacturer's certificate referred to in the above referred letter is dated 8-24-87 (may be dated 8-2-87) the same is produced on record (Exh. 'D'), which reads as under : "C E R T I F I C A T E This is to certify that goods shipped conform to purchase Contract No. NIL dated 24-3-1987 of Harris Graphics, New Hampshire and that all the terms and conditions thereof have been complied with." The conjoint reading of above two documents unequivocally try to suggest that V-15H Model exported to India is modified to run at 36,000 speed. The modification pertains to design changes in JF-25 folder of the machine to run at that speed and to take additional load due to higher speed, the horse power of the machines are suitably modified to comply with current import policy, so as to give a maximum output at the rate of 36,000 copies per hour. 36.The dissection made in the letter dated 21st January, 1988 further reveals that the modification pertains to design changes in JF-25 folder of the machine to run at higher speed and to take load of the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s based on the inspection completed before 28th September, 1988 shows that the folder base of the machine in question was found as JF-25-B model. Had the folder been upgraded from JF-25B to JF-25, then the machine in question ought to have been with modified folder JF-25 and could not have been with folder base JF-25-B. Fourthly, other modified folders JF-4 and JF-10 are not to be found in the inspection note, obviously, for want of such machine or model with such modified folders. This inspection note has not been objected to by the petitioners. Thus, it can be safely treated as undisputed document. One more shade of the same evidence needs further appreciation. The letter of M/s. S.L. Kulkarni & Co. dated 21st January, 1988 (Exh. 'J') makes out a case that the original Model V-15-H exported to India has been modified to run at 36,000 speed. The modification pertains to design changes in folder of the machine to run at that speed and to take additional load due to higher speed, the horse power of the machine has also been suitably modified is the case sought to be made out. We have already observed and recorded our finding that no evidence is available on record to establish modif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect and test the consignment under the supervision of the Court appointed Officer. The testing and inspection was to be done within five days from 2nd September, 1988 and the adjudicating authority was directed to pass an order within seven days from the inspection and testing. Extract of the said order has already been reproduced in the opening part of this judgment. As the respondents could not complete inspection and testing of machine as directed by this Court, the Customs Authorities sought for extension of time which was granted up to 28th September, 1988 vide order dated 20th September, 1988. The Assistant Collector of Customs (SIIB) vide his affidavit dated 25th October, 1988 submitted that the examination of the entire consignment was completed on 28th September, 1988. The inspection report was placed on record along with the said affidavit to which reference has already been made in the earlier paras of the judgment. 41.Turning back to the order dated 2nd September, 1988, it is clear that parties were directed to carry out inspection and testing of the consignment under the supervision of the Court appointed officer. However, it appears that inspection has been carried ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of this Court dated 2nd September, 1988. The inaction and failure on the part of the petitioners constitute failure on their part to produce best piece of evidence. As already observed hereinabove, this piece of evidence could not have been collected by the Customs without co-operation of the petitioners. The petitioners deliberately did not take any steps after obtaining interim orders for a long period of 14 years which compels us to draw adverse inference. The presumption has, therefore, to be raised against them that if such evidence had been produced or testing of machine had been carried out, the same would have gone against the case propounded by the petitioners. Failure on the part of the petitioners, even to make production data available must be similarly construed and presumption may be drawn for that this evidence also could have gone against the petitioners. It is not possible to presume that during pendency of last 14 years, machine may not have been run by the petitioners continuously for one hour, especially, when the machine was and is being used for printing newspaper, namely, Nai-Duniya which has wide circulation in the State of Madhya Pradesh. The judici ..... X X X X Extracts X X X X X X X X Extracts X X X X
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