TMI Blog2002 (5) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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-fed High Speed letter press rot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ABLE 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort 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 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 sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, Silico ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 concer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 calle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 folde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 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 Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... 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