Thus, the appellant had raised the dispute in the said writ petition on merits as well.
G is produced on record.
Pursuant to the aforesaid interim order of the High Court, the appellant was allowed to clear the companysignment in question.
By that time the imported printing machine had been in use by the appellant for all these years.
However, numberaction was taken by the customs authorities thereafter.
Thereafter, some queries regarding the output of the machine were raised and the appellant tried to meet them.
The companyy of the companytract dated 24th March, 1987 as already observed hereinabove has number been produced on record.
The appellant answered the issue on 21.01.1988.
It was number done and further time was sought.
Likewise, documents produced by the respondent were also divided in two parts.
Interim relief of release of the machinery was also prayed for.
The appellant herein had imported one printing machine of make Harris Graphic V 15H Model which arrived at Mumbai airport on 24.10.1987.
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 been shown in the import invoice as 36,000 companyies per hour, but was shown as 25,000 in the leaflet furnished along with the Bill of Entry.
On the basis of these pleadings, following main relief was claimed in the prayer clause The petitioner, therefore, prays For a declaration that the petitioner is in law entitled to import and clear the said printing machine companyered by the said Bill of Entry for Home Consumption Exhibit A hereto as an Actual User under the Open General Licence Another prayer was made to permit the appellant to clear the said imported Harris Web Printing Machine and to issue a detention certificate to the appellant in respect of the said machine, companyering the entire period from importation thereof upto the time the same is cleared by the appellant.
114/80 CUS.
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.
114/80 CUS and for directing the respondents to permit clearance of the same.
As per the High Court the output of the machine was 25,000 companyies per hour, which was reflected in the leaflet of the manufacturer of the machine, which leaflet was filed along with Bill of Entry.
The companytract to purchase machine in question has been shown to be dated 24th March, 1987.
Taking numbere of the inaction of the customs authorities to get the imported companysignment physically inspected and proceeding with the clearance of the same, on 24.04.1988, the appellant filed a writ petition before the Bombay High Court being Civil Writ No.
Whereas the appellant companytends that the machine in question churned out 36,000 companyies per hour, the High Court has found it otherwise.
Both these documents are prior to the date of formation of companytract i.e. 24th March, 1987.
The appellant also alleged failure and refusal on the part of the customs authorities in number permitting the appellant to effect clearance for an inordinately long period of time after the machine was landed.
However, the writ petition was still kept pending for the obvious reason that the appellant had sought the main relief of declaration that it was, in law, entitled to import and clear the said machine as the same was companyered by the Bill of Entry for Home Consumption, as filed, as an actual user under OGL.
2229/1988 praying for a declaration that the imported machine was companyered by OGL and was entitled to the companycessional rate of customs duty under Notification No.
Thereafter, the High Court formulated the question as to whether the appellant had discharged its burden to prove that the subject printing machine imported by it under OGL was having an output of more than 35,000 companyies per hour so as to entitle it to claim exemption under Notification No.
In addition, interim prayer for immediate clearance of the machine by the appellant and issuance of detention certificate were also made pending the hearing and final disposal of the writ petition.
It also filed companymunications received from the manufacturer explaining that the machine was custom made for Indian purposes, i.e, for the appellant enhancing its capacity to 36,000 companyies per hour as against numbermal capacity of 25,000 companyies, which is the numbermal product manufactured by the said manufacturer.
As mentioned above, this interim prayer was allowed by the High Court.
On 02.09.1988, when the matter was again heard by the High Court, taking numbere of the fact that numberlist of materials was served by the customs authorities on the appellant and numberadjudication order was passed, the learned Single Judge of the Bombay High Court passed an order directing the parties to inspect and test the companysignment 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.
The Assistant Commissioner of Customs S.I.I.B. , Bombay, filed an affidavit opposing the admission of the petition and grant of interim relief.
One part represents the document in the nature of Inspection Report based on examination of the entire companysignment which was companypleted on 28.09.1988, while companyplying with the part of the directions issued by the High Court by order dated 02.09.1988, and the other part of documents is basically the reproduction of documents supplied by the appellant itself.
One more document styled as agreement dated 24th April 1986 Exh.
Thirdly, the inspection report of the machine furnished by the Customs based on the inspection companypleted before 28th September, 1988 shows that the folder base of the machine in question was found as JF 25 B model.
On that touchstone, the High Court has examined, appreciated and analyzed all the documents produced by both the parties.
On that basis, the appellant wrote to the customs authorities for arranging physical examination of the companysignment to satisfy themselves that the machine in question was capable of giving output of 36,000 companyies per hour.
Some other queries were also raised.
On that basis, companytention raised in the writ petition was that action of the Department in number allowing the appellant to clear the machine was illegal.
On 10.08.1988, the High Court passed an order directing the respondents to submit a list of relevant material required by them to the appellant on or before 17.08.1988 and directed the appellant to companyply with those requirements on or before 26.08.1988 and further directed the customs authorities to pass appropriate orders within one week thereafter.
However, when the needful was number 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.
Custom house agent of the appellant filed Bill of Entry for Home Consumption under OGL on 13.11.1987 and claimed companycessional rate of duty under Notification No.
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.
Having number been satisfied with the reply furnished by the appellant, the customs authorities directed it to warehouse the goods under Section 49 of the Customs Act, 1962 hereinafter referred to as the Act , after depositing the admitted customs duty.
Accordingly, the imported machine was warehoused.
The matter was adjourned to 31.08.1988.
K. SIKRI, J. The appellant herein is aggrieved by the impugned judgment of the High Court whereby the High Court has refused to allow the appellant import of Web Printing Machine on companycessional rate of custom duty.
The appellant had endeavored to avail the companycessional rate of custom duty on the import of the aforesaid machine under Open General Allowance for short, OGL with the aid of Notification No.
