TaxTMI 
TaxTMI 
TaxTMI 
2015 (8) TMI 579
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....in. To put it pithily, one of the conditions needs to be satisfied to avail the concessional rate of duty @ 35% ad valorem under the aforesaid Notification is that the machine is having output of 30,000 or more copies per hour. Whereas the appellant contends that the machine in question churned out 36,000 copies per hour, the High Court has found it otherwise. As per the High Court the output of the machine was 25,000 copies per hour, which was reflected in the leaflet of the manufacturer of the machine, which leaflet was filed along with Bill of Entry. 2) In order to find out the details of the factual background under which the aforesaid issue has cropped up, let us traverse through the facts in some more details. 3) The appellant herein had imported one printing machine of make 'Harris Graphic V-15H Model' which arrived at Mumbai airport on 24.10.1987. Custom house agent of the appellant filed Bill of Entry for Home Consumption under OGL on 13.11.1987 and claimed concessional rate of duty under Notification No. 114/80-CUS. 4) On 26.11.1987, the Appraiser of Customs House, Bombay issued a query memo with regard to the printing capacity of the imported machine which had....
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....as again heard by the High Court, taking note of the fact that no list of materials was served by the customs authorities on the appellant and no adjudication order was passed, the learned Single Judge of the Bombay High Court passed an order directing the parties to inspect and test the consignment under the supervision of the Court Appointed Officer within 5 days from 02.09.1988 and directing the Adjudicating Authority to pass an order within 7 days from the inspection and testing. It was not done and further time was sought. However, when the needful was not done even after getting time extension, on 03.10.1988, the Bombay High Court passed an order allowing clearance of the imported machine in question in terms of prayer clause (c)(i) of the writ petition. 10) Pursuant to the aforesaid interim order of the High Court, the appellant was allowed to clear the consignment in question. However, the main writ petition was kept pending thereafter which came up for final hearing in the year 2002, i.e. 14 years after the filing of the writ petition. By that time the imported printing machine had been in use by the appellant for all these years. The learned counsel appearing for the app....
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....led by the appellant, there was no order restraining the respondents from issuing show cause notice under Section 28 of the Act and to proceed with the process of adjudication. Therefore, it was open to the customs authorities to invoke the said machinery under the Act. However, it was not done, which resulted in accruing valuable right in favour of the appellant. The learned counsel, thus, insisted that when the customs authorities were precluded from taking any action against the appellant because of embargo of limitation coming in their way, the High Court was equally incompetent to decide the said issue on merit and passing the liability upon the appellant in respect of time barred claim. (iii) Another submission of Mr. Rao was that the writ petition was filed in the year 1988 in which interim order was granted in favour of the appellant. The High Court was forced to pass such an order directing release of the machine to the appellant when the authorities failed to get the machine inspected to find out the potential output of the said machine. Therefore, the Department allowed the chance to be slipped away to verify this fact on which the entire decision depended, and benefi....
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....aded for the dismissal of the appeal. 13) We have considered the respective submissions of the learned counsel for the parties on either side with reference to the record. In a matter like this, it is necessary in the first instance to take note of the scope of the writ petition that was filed by the appellant in the High Court which is dismissed by the judgment impugned. A copy of the said judgment is placed on record and a perusal thereof would show that the appellant contested and disputed the position taken by the Department that the imported machine did not fulfill the aforesaid requirement of exemption Notification No. 114/80-SC. The appellant enclosed copies of various documents procured from the manufacturer and others in support of its submission on the basis of which it was claimed that the appellant was able to establish that the speed of the imported printing machine was 36,000 copies per hour. On that basis, contention raised in the writ petition was that action of the Department in not allowing the appellant to clear the machine was illegal. The appellant also alleged failure and refusal on the part of the customs authorities in not permitting the appellant to effect....
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....ess game is not needed because of one simple reason. When the writ petition came up for final hearing in the year 2002, it is the appellant who is responsible for inviting the decision on merits. Even at that stage, the appellant could have simply withdrawn the writ petition as with the passing of interim order it had got the printing machine cleared from the customs authorities and was using the same. However, it did not choose to do so. Had it done so, and thereafter received show cause notice under Section 28 of the Act, it could have defended that notice raising the plea of limitation as well. Only then question would have arisen as to whether the period during which the writ petition remained pending had to be excluded or not, for the purpose of computing limitation period. However, for the reasons best known to the appellant, the appellant argued exactly the opposite of the submissions made before us by Mr. Rao. We point out, at the cost of repetition, that it was at the instance of the appellant that this issue was taken up for hearing. We reproduce below the following discussion in the impugned judgment touching upon this aspect: "The long pendency of this petition for 14....
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....hawas Steel Traders Vs. Union of India, 1993 (68) ELT 721 (Bom.). The petitioners therein were permitted to clear the assignment 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 view of the matter, submission was made to decide this petition on its own merits on the available material." 20) After inviting the High Court to decide the matter on merits and finding that the decision has gone against the appellant, contrary argument is nothing but a desperate attempt to chicken out of the situation which is appellant's own creation. This kind of somersault, taking completely reverse stand before us, cannot be countenanced. We, therefore, reject the contention of the appellant that High Court was not competent to decide the issue in exercise of its writ jurisdiction. 21) The position would have been different if ....
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....the respondent had issued show cause notice under Section 28 of the Act. Further, it is not that the High Court was oblivious of the provisions of Section 28. That is categorically recorded in the impugned judgment. Curiously, it is the appellant who, pointing this very reason, invited the decision on merits. Now, therefore, issue of limitation is not even open for the appellant to urge before us. 25) Other arguments of Mr. Rao were on the merits of the case. Now we shall advert to those submissions. 26) As pointed out above, the case of the appellant is that the High Court has given undue weightage to the two leaflets as against the other material, including the certificate of the manufacturer clearly stating that the machine in question which was supplied to the appellant was an upgraded version capable of producing 36,000 prints per hour. However, from the reading of the impugned judgment, it becomes clear that each and every document which was filed and relied upon by the appellant has been discussed. The High Court observed that insofar as the documents of the appellant are concerned, they can conveniently be divided into parts. One part of the document consists of two leafl....
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....y stated, the leaflets do not support this picture sought to be projected through the above certificate dated 3rd June, 1986. Secondly, had it been so, the subsequent leaflet alleged to be a catalogue of modified model would not have been omitted to mention this special feature of the upgraded model. It does not support the assertion sought to be made in the certificate in question. No reference is to be found to the additional folders styled as JF-4 and JF-10 in the said literate. Thirdly, the inspection report of the machine furnished by the Customs 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-125-Bto 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 ....