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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 ..... t). The relevant clause 45 of the Import 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as in excess of 35 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 discrepancy in the invoice and the literature of the machine which was in the form of leaflet. In the invoice the declared speed of the machine was 36,000 copies per hour, whereas literature of the machine in the form of leafl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d-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 goods under section 49 of the Customs Act after depositing admitted customs duty so as to avoid incurring demurrage. Accordingly, the said machine was warehoused. 9.M/s. S.L. Kulkarni & Co., claiming to be the agent of the manufacturer in India, on the same day i.e. on 21st January, 1988, addressed a letter to the Special Investigating Officer of the Customs Department, Bombay (Exh. 'J') indicating that as per information received from their principal that the printing machine Model Harris Graphics vis-a-vis Web Offset Press exported to India was modified to run at the speed of 36,000 copies per hour. The relevant extract of the said letter reads as under : We"1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 passed order on 2nd September, 1988 directing the parties to inspect 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 is reproduced hereinbelow : "........ In the circumstances the only way out is to direct the inspection and testing of the consignment by the parties or their representatives under the supervision of a Court appointed officer. Mr. A.R. Bapat of the Original Side is designated that officer. He will arran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 other than what the petitioner had already pointed out, namely, that the printing machine in question was capable of printing more than 35,000 copies per hour. He further submitted that even in the aforesaid affidavit dated 25th October, 1988, filed after inspection of the machine in question, no mention is to be found that the machine was not capable of printing 35,000 copies per hour. In his submission, this affidavit is totally silent on this aspect of the matter. No further affidavit has been filed though 14 years have been passed. He, therefore, submitted that it is clear that the department had accepted the documents and contentions of the petitioners and was sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 specifications etc. having capacity of 25,000 copies per hour can possibly print 36,000 copies per hour. It is further submitted that some lame explanation was sought to be given by the petitioners. He drew our attention to few items admittedly imported by the petitioners like Automatic Splicer, Baldwin Circulating Water Level System Web Break Detector, Silicone Applicator and P.B.-3 plate Benders. All these items imported by the petitioners are not mentioned in the technical leaflet originally submitted by the petitioners for claiming the beneficial assessment under notification No. 125 of 1986. In such a situation it was obligatory on the part of the petitioners to show t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... un 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 department to the strict proof in support of their allegations. He further tried to plead mistake in delivering leaflet showing the speed of the machine as 25,000 and tried to reiterate the alleged modifications alleged to have been carried out in the machine/model in question and also tried to emphasize that it was not necessary for the manufacturer to mention modifications in the leaflet so long as it mentioned the actual speed of the machine. He lastly relied upon the documents produced on record in support of his submission. 17.The learned counsel for the respondents submitted that the affidavit dated 19th March, 2002 filed by the petitioners to deny the searc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 Court followed by this Court from time to time. However, in the following circumstances we are required to exercise our writ jurisdiction and decide this controversy on merits. WHY DECISION ON MERITS 21.The long pendency of this petition for 14 years and the peculiar stand taken by the petitioners prevented us from remitting this matter to the adjudicating authorities under the Act to determine the disputed questions of fact. Left with no other alternative, we are constrained to decide this matter on merits on appreciation of evidence for the following reasons : (a) The printing machine in question was imported in India on 24-11-1987. (b) The respondents did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 jurisdiction of the Court to issue writ. He also brought to our notice judgment of Division Bench of this Court in the case of Nehwa Steel Traders v. Union of India, 1993 (68) E.L.T. 721 (Bom.). The petitioners therein were permitted to clear the consignment on certain terms under interim order which specifically provided that the respondents would be at liberty to serve show cause notice and pass appropriate adjudication order. The respondents having failed to take any follow up action for more than 10 years, this Court in that case had observed that no fruitful purpose would be served by permitting the respondents to commence adjudication proceedings hereinafter. In this vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 was having an output of more than 35,000 copies per hour so as to entitle them to claim exemption benefit of Notification 114-Cus., dated 19-6-1980 as amended by Notifications No. 236-Cus., dated 29-11-1980; No. 38-Cus., dated 28-2-1982 and No. 176/86-Cus., dated 1-3-1986. 26.Now, let us turn to examine and appreciate the evidence produced by the parties to the petition. The first document placed on record is a bill of entry (Exh. 'A') which admittedly does not refer to the printing capacity of the machine in question. The description of machine given in the bill of entry is as under : "One (1) New Harris Model-V-15-H Web-Feb High Speed Offset Rotary Printing Mach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 as "leaflet-B"). This "leaflet-B" is showing print area or printing capacity of the Model as 36,000 without referring to the alleged improvement alleged to have been made in the said model. Both leaflet-A and leaflet-B, referred to hereinabove, are showing identical details so far as another specifications of the model are concerned except the printing area. In one catalogue i.e. leaflet-A, print area has been shown as 25,000, whereas in another i.e. leaflet-B it is shown as 36,000. The alleged modifications alleged to have been made in the model having print area of 36,000 nowhere appear in the leaflet-B supplied by the petitioners. In the natural course of regula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 denying correctness of amount found due. Defendent who is in possession of account books kept by him and from which the balance could be ascertained should produce them before Court. He cannot be heard to say, relying upon the abstract doctrine of onus of proof, that it was no part of his duty to produce them unless he was called upon to do so." 32.The Apex Court in the case of Khushalbhai Hajibhai Patel v. Firm Moh. Rahimbux, AIR 1981 SC 977 held that failure to produce best evidence, presumption that evidence would have gone against the petitioner can be drawn. In our opinion, this is a fit case for drawing adverse inference against the petitioners for withholding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,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 additional higher speed. This assertion made by the petitioners stands belied by both the leaflets (A and B), if examined case fully. The specifications of the folder in both leaflets (A and B) (one showing printing area as 25,000 and other showing it as 36,000), if compared, would demonstrate in unequivocal terms that there is absolutely no change in folder of both alleged models. The description of folder with respect to both alleged models including pictorial image is identically same. The description of data, to demonstrate identical similarity with respect to both alleged models, is reproduced hereinbelow : Taken from leaflet-A Taken from leaflet-B JF-25B Fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 modification of the folder base of the machine or model in question. If this be our finding, then the logical conclusion is that no modifications have been made in the folder base of the machine or model in question. If that be so, then in absence of modification of the folder base, machine cannot be said to be capable of taking additional load. Therefore, it cannot give higher speed so as to give higher production to the extent of more than 35,000 copies per hour. The certificate and the letter of M/s. S.L. Kulkarni & Co., therefore, cannot be relied upon. The same cannot be given any credence. The said evidence, for the aforesaid reasons, is not acceptable to us. 39. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 out, but no testing of the machine was done, at any rate no such report is available on record. On being questioned, learned counsel for the parties did admit that testing of the machine has not been carried out at any time much less under the supervision of the Court appointed officer and no testing report is on record. 42.On the aforesaid backdrop, the order of the learned single Judge dated 2nd September, 1988 could be said to be referable to the provisions of order 26 rule 10 read with rule 10A of Code of Civil Procedure, 1908 ("C.P.C." for short). It was thus obligatory on the part of both parties to carry out testing of the consignment under supervision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 judicial note of the fact can be taken that the newspapers meant for next morning circulation are required to be printed on a previous night. We are unable to digest that at no point of time there was an opportunity to the petitioners to run the said machine continuously for a duration of one hour or more. In this backdrop, it is a fit case for drawing adverse inference against the petitioners for failure on their part for testing the consignment and to take advantage of specific order granted by this Court dated 2nd September, 1988. 44.It is no doubt true that it was also obligatory on the part of the respondents to get the testing of the consignment under the supervis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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