D.R. ENTERPRISES LTD.versusASSISTANT COLLECTOR OF CUSTOMS AND ORS.

                    (2015] 8 S.C.R. 1131


                 D.R. ENTERPRISES LTD.                          A
                             v.
   ASSISTANT COLLECTOR OF CUSTOMS AND ORS.
              (Civil Appeal No. 4417 OF 2003)
                                                                B
                     AUGUST 12, 2015
           [A.K. SIKRI AND N.V. RAMANA, JJ.]
        Customs Act, 1962 - Customs duty-At concessional
rate - Under Open General Allowance with the aid of             c
Notification No.114180-CUS, dated 19.6.1980- On import
of Web Printing Machine - Writ petition praying for
declaration that the import of the machine was permissible
at concessional customs duty- Import at concessional rate
denied by the High Court on the ground that the Notification D
 was not applicable as one of the conditions that the machine
is having output capacity of 30,000 or more copies per hour,
is not fulfilled - On appeal, held: The burden to prove the
output capacity of the machine as per the requirement under
 the Notification, is on the assessee and the assessee in E
having failed in proving the same, denial of permission to
import the machine at concessional rate of customs duty was
justified- Notification No.114180-CUS, dated 19.6.1980.

       Constitution of India, 1950:                             F
         Art. 226 - Writ jurisdiction - Scope of - The powers
 u/Art. 226 are very wide -Availability of alternate remedy may
 not preclude the High Court from exercising the writ
jurisdiction - The denial to exercise the writ jurisdiction, in G
 view of availability of alternate statutory remedy, is only a
self imposed restriction.

       Art.226 - Writ Petition - Praying for declaration that
                            1131                                H
1132       SUPREME COURT REPORTS                 [2015] 8 S.C.R.


 A the imported machine was covered by Open General
   Allowance and was entitled to concessional rate of customs
   duty under Notification No.114180-CUS - The importer
   inviting the High Court to decide the issue on merit as to
   whether the machine fulfilled the criteria to be included under
 B the Notification - High Court deciding the issue against the
   importer- On appeal, plea of the importer that the High Court
   was not competent to decide the issue on merit when the
   Customs Act provides for complete adjudication machinery
 C to adjudicate the issue - Held: The importer itself having
   invited the High Court to decide the case on merit and further
   finding that case has gone against it, cannot take a contrary
   plea - The High Court was competent to decide the issue in
   exercise of its writ jurisdiction - Customs Act, 1962- s.28-
 D Jurisdiction - Writ Jurisdiction - Notification No. 114180-
   CUS, dated 19. 6. 1980.

           Limitation - Import of Web Printing Machine in the
   year 1987 - Adjudication of the issue as to whether the
   machine was covered by Notification No.114180 after about
 E 15 years - Whether time-barred - Held: The issue was
   pending adjudication before High Court (writ court) -
   Proceeding u/s.28 of Customs Act were not initiated - The
   petitioner, itself impressed upon the High Court to decide
 F the matter on merit- In view of the above facts, question of
   limitation does not arise - Customs Act, 1962- s.28.

            Disposing of the appeals, the Court

           HELD: 1.1 The powers of the High Court under
 G Article 226 of the Constitution, while issuing appropriate
   writs, are very wide. Even if there is an alternate remedy,
   that may not preclude the High Court from exercising
   the jurisdiction in a particular case. In the face of alternate
   statutory remedies, when the High Court declines to
 H exercise the jurisdiction under Article 226 of the
  D.R. ENTERPRISES LTD. v. ASSISTANT COLLECTOR            1133
                  OF CUSTOMS

Constitution, it is a self imposed restriction only. [Para A
21] (1145-E-F]

        1.2 The High Court, while deciding the writ petition
on merit, was not oblivious of Section 28 of.~he Act and
that determination of such an issue is tio be more B
appropriately in the hands of Adjudicating Authority. It
also appears that High Court might have disposed of
the writ petition with liberty to the Adjudicating Authority
to initiate proceedings under Section 28 of the Act Such
an action was not taken at the instance of the appellant C
which contended otherwise. [Para 19] [1144-D]

        1.3 After inviting the High Court to decide the
  matter on merits and finding that the decision has gone
  against the appellant, contrary argument before this· D
  Court, is nothing but a desperate attempt to chicken out
  of the situation which is appellant's own creation.
  Therefore, the plea of the appellant that High Court was
· not competent to decide the issue in exercise of its writ
 jurisdiction is rejected. [Para 20] [1145-C, DJ            E

      2. The plea that the issue involved disputed
question of fact is also not available to the appellant.
Order of the High Court clearly records that the appellant
had requested the High Court to decide the issue on the F
basis of material on record. [Para 22] [1146-A-B]

     3. The issue as to whether the import of Web
Printing Machine was covered by Notification No.114/80-
CUS dated 19.06.1980 was pending in the High Court in G
respect of which, petition was filed by the appellant itself
way back in the year 1988 raising this issue. The appellant
even got the interim order in its favour. When the writ
petition came up for final hearing, the appellant
impressed the Court to decide the said issue. In such a H
1134           SUPREME COURT REPORTS              [2015] 8 S.C.R.


 A situation, question of limitation does not arise inasmuch
   as it is not a case where proceedings under Section 28
   of the Customs Act, 1962 were taken out giving any show
   cause notice under the said Section. The question of
   limitation would have arisen only in case, the respondent
 B had issued show cause notice under Section 28 of the
   Act. Therefore, issue of limitation is not even open for
   the appellant to urge before this Court. [Para 24) [1146-
       D-G]

 C        4. 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
    copies per hour so as to entitle it to claim exemption
 D under Notification No.114/80-CUS, as amended from time
    to time. On that touchstone, the High Court has
    examined, appreciated and analyzed all the documents
    produced by both the parties. Having regard to the fact
   .that burden of proof was on the appellant to establish
 E that the machine imported by it generates more than
    35,000 composite impressions or copies per hour and
    that the appellant has failed to do so, the view taken by
    the High Court is correct. [Paras 27 and 28) [1147-G-H;
 F 1148-A; 1150-F]

            CIVIL APPELLATE JURISDICTION : Civil Appeal No.
       4417 of2003

         From the Judgment and Order dated 03.05.2002 of the
 G Division Bench of the High Court of Judicature at Bombay in
   Writ Petition No. 2229 of 1988

              L. Nageshwar Rao, Praveena Gautam, ReenaAsthana
       Khair, Deepak Tyagi, Pramod B. Agarwala for the Appellant.
 H
              AK. Panda, AV. Rangam, Bussy A. Ranganadhan,
  D.R. ENTERPRISES LTD. v. ASSISTANT COLLECTOR                       1135
                  OF CUSTOMS

 Raghuvamsy, B. V. Niren, Sunita Rani Singh, B. Krishna A
Prasad for the Respondents.

      The Judgment of the Court was delivered by

      A. K. SIKRI, J. 1) The appellant herein is'~ggrieved by B
the impugned judgment of the High Court whereby the High
Court has refused to allow the appellant import of Web Printing
Machine on concessional rate of custom duty.The appellant
had endeavored to avail the concessional rate of custom duty
on the import of the aforesaid machine under Open General C
Allowance (for short, 'OGL') with the aid of Notification No.
114/80-CUS, dated 19.06.1980. The High Court has held that
the said Notification is not applicable in the instant case as
the appellant has not been able to satisfy one particular
eligibility condition contained therein. To put it pithily, one of o
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 E
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.
                                                                     F
     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 G
machine of make 'Harris Graphic V-15H Model' ' which
                                                 ;j.
                                                      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.                              ·   H
1136       SUPREME COURT REPORTS                   [2015) 8 S.C.R.


 A       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 been shown in
   the import invoice as 36,000 copies per hour, but was shown
   as 25,000 irr the leaflet furnished along with the Bill of Entry.
 B Some other queries were also raised. The appellant answered
   the issue on 21.01.1988.

         5) Having not been satisfied with the reply furnished by
   the appellant, the customs authorities directed it to warehouse
 C 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.

 o       6) Thereafter, some queries regarding the output of the
   machine were raised and the appellant tried to meet them. It
   also filed communications 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
 E copies per hour as against normal capacity of 25,000 copies,
   which is the normal product manufactured by the said
   manufacturer. On that basis, the appellant wrote to the customs
   authorities for arranging physical examination of the
   consignment to satisfy themselves that the machine in question
 F was capable of giving output of 36,000 copies per hour.
   However, no action was taken by the customs authorities
   thereafter.

         7) Taking note of the inaction of the customs authorities
 G to get the imported consignment 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. 2229/1988) praying for a declaration that
   the imported machine was covered by OGL and was entitled
 H to the concessional rate of customs duty under Notification
  D.R. ENTERPRISES LTD. v. ASSISTANT COLLECTOR                   1137
            OF CUSTOMS [A. K. SIKRI, J.]

No. 114/80-CUS and for directing the respondents to perrl)it A
clearance of the same. Interim relief of release of the
machinery was also prayed for.

      8) The Assistant Commissioner of Customs (S.1.1.B.),
Bombay, filed an affidavit opposing the admission of the B
petition and grant of interim relief.         ~

       9) On 10.08.1988, the Higtr 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 c
directed the appellant to comply with those requirements on
or before 26.08.1988 and further directed the customs
authorities to pass appropriate orders within one week
thereafter. The matter was adjourned to 31.08.1988. On
02.09.1988, when the matter was again heard by the High D
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 E
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
aftergetting time extension, on 03.10.1988, the Bombay High F
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 G
Court, the appellant was allowed to clear the cor'i's'ignment 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 thattime the
imported printing machine had been in use by the appellant H
1138         SUPREME COURT REPORTS                   [2015] 8 S.C.R.


 A for all these years. The learned counsel appearing for the
   appellant, in these circumstances, impressed upon the High
   Court to decide itself the issue involved, namely, whether
   imported machine could print 36,000 copies per hour or its
   speed was less than 30,000 copies per hour and whether the
 B appellant was not entitled to the benefit of the concerned
   Notification. The High Court went into the issue and by its
   detailed judgment it has decided this issue against the
   appellant. The basis for arriving at such conclusion shall be
   stated by us in some details at the later stage.
 c
             11) Mr. L. Nageshwar Rao, learned senior counsel who
       appeared for the appellant, challenged the very approach of
       the High Court in deciding the issue on merits as well as the
       finding arrived at by the High Court in the following manner:
 D
     (i)    In the first place, it was argued that the High Court was
     not competent to go into this issue when the Act provides for
     complete adjudication machinery to adjudicate this issue.
     Learned senior counsel referred to the provisions of Section
 E   28 of the Act, as per which 'the authorities are supposed to
     issue show cause notice to the importer and after giving
     opportunity to the importer to meet the allegations contained
     in show cause notice, the Adjudicating Officer is to pass an
     Order-in-Original deciding the case stated in the show cause
 F   noti~. He pointed out that against the order of the Adjudicating
     Authority there is a provision for appeal before the Customs,
     Excise and Service Tax Appellate Tribunal (for short,
     'CESTAT'). Against the order of the CESTAT, appeal is
     provided to the Supreme Court. He further submitted that the
 G   Authority and Tribunal are the fact finding authorities, which
     are supposed to take evidence/material on record and arrive
     at a finding on that basis. Mr. Rao, in this backdrop, submitted
     that not only this procedure was sidelined thereby causing great
 H   prejudice to the appellant, even otherwise, the High Court,
     while exercising its extraordinary writ jurisdiction under Article
  D.R. ENTERPRISES LTD. v. ASSISTANT COLLECTOR                  1139
            OF CUSTOMS [A. K. SIKRI, J.]

226 of the Constitution, was not competent to decide the A
disputed questions of facts.

(ii) Mr. Rao also impressed upon the fact that it....
                                                    was
                                                      ,  not open
to th.e Department now to contend that the machinE'! in question
was incapable of producing 36,000 copies per hour and have B
the matter adjudicated when by this time the matter had
become time barred. In this behalf, it was pointed out that in
the writ petition filed 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 C
 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 D
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.
                                                                  E
(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 . F
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 benefit
thereof should have been given to the appellant as it was not
possible to ascertain this fact after 14 years. lnoany case, it G
was argued that even the High Court before deciding the issue
did not go into this aspect.

(iv) The last submission of Mr. Rao was on merits of the case
emph;:isising that the High Court was merely influenced by the H      ·
1140          SUPREME COURT REPORTS                     [2015] 8 S.C.R.


 A     leaflets containing the literature about the machine and did
       not appreciate other material produced by the appellant,
       including the clarifications furnished by the manufacturer itself
       stating that aevance version of the machine, with modification,
       was manufaptured and supplied to the appellant and insofar
 B     as machine in question is concerned it had the printing capacity
       of 36,000 copies per hour. He, thus, submitted that even on
       merits, the findings of the High Court were coerced.

              12) Mr. A.K. Panda, learned senior counsel appearing
 C     for the Revenue, per contra, refuted the aforesaid submissions
       forcefully. He put it emphatically that it did not behove well on
       the part of the appellant to now question the jurisdiction and
       competence of the High Court to go into the issue when the
       High Court was requested and persuaded by the appellant
 D     itself to decide the issue, as is reflected in the impugned
       judgment itself. He, thus, argued that the appellant was
       estopped from raising such an issue when the appellant itself
       invited the judgment on merits. According to Mr. Panda, this
       fact would also negate the contention of the appellant
 E     predicated on limitation. His submission in this behalf was that
       the appellant had itself raised this issue in the High Court in its
       petition which was pending adjudication. That was a reason
       that the Revenue authorities did not initiate any action as per
 F     the adjudicatory mechanism provided in the Act. Therefore,
       the appellant was not entitled to rake up the issue of limitation
       as well. On merits, the learned senior counsel submitted that
       once the High Court was invited to decide the issue on the
       basis of material that was placed on record by both the sides,
 G     the High Court had looked into the said material in its entirety
       and has found that the machine in question imported by the
       appellant does not meet the requirement of Notification No.
       114/80-CUS as its output is only 25,000 copies per hour which
       is less than 30,000 copies that is needed to avail the benefit
 H     of the Notification. He,.therefore, pleaded forthe dismissal of
       the appeal.
  D.R. ENTERPRISES LTD. v. ASSISTANT COLLECTOR                       1141
            OF CUSTOMS [A. K. SIKRI, J.)

       13) We have considered the respective submissions of          A
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         B
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         C
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         D
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
clearance for an inordinately long period of time after the          E
machine was landed. On the basis of these pleadings,
following main relief was ·claimed in the prayer clause:

      "The petitioner, therefore, prays:

      (a) For a declaration that the petitioner is in law            F
      entitled to import a.nd 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;"
                                                                     G
      14) Another prayer was made to permit the appellantto
clear the said imported Harris Web Printing Machine and to
issue a detention certificate to the appellant in respect of the
said machine, covering the entire period from importation
thereof upto the time the same is cleared by the appellant. In       H
1142          SUPREME COURT REPORTS                       [2015] 8 S.C.R.


 A     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.

              15) As mentioned above, this interim prayer was allowed
 B     by the High Court. 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 covered by the
       Bill of Entry for Home Consumption, as filed, as an actual user
 C     under OGL. Thus, the appellant had raised the dispute in the
       said writ petition on merits as well.

             16) No doubt, when the High Court passed the interim
       order in favour of the appellant, the High Court could dispose
 D     of the writ petition with the observation that the aforesaid issue
       involved on merit can be gone into by the appropriate authority
       by putting the machinery of adjudication in motion via Section
       28 route. For some reason, that was not done and it was more
       so as the appellant had itself prayed for declaration to this
 E     effect in the writ petition, which means it called upon the High
       Court to decide this issue.

          17) In the aforesaid scenario, when the writ petition was
   pending, wherein this issue was raised, probably for this
 F reason the Department also stayed its hands off. No doubt,
   there was no stay of adjudication proceedings and the
   competent authority could go ahead with the adjudication
   proceedings. However, ifthere was a show cause notice in
   the year 2002, whether it would have been time barred or not
 G is not even required to be gone into. Such a guess 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
 H the writ petition as with the passing of interim order it had got
  D.R. ENTERPRISES LTD. v. ASSISTANT COLLECTOR                      1143
            OF CUSTOMS [A. K. SIKRI, J.)

the printing machine cleared from the customs authorities and A
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 B
remained pending had to be excluded or not, for the purpose
of computing limitation period. However, forthe 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 C
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 years and          D
      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            E
      appreciation of evidence for the following reasons:

       18) Then, as many as seven reasons were given by the
High Court which compelled the High Court to decide the issue
on merits. After noting those reasons, the High Court recorded ·F
as follows:
                                                              ~;t

      "In the aforesaid circumstances, though we initially .
      thought of getting the issue adjudicated through the
      adjudicating authority by directing the respondents ·· '' ·   G
      to issue show cause notice under Section 11-A            ·
      [(sic); Section 28] 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        H
1144       SUPREME COURT REPORTS                    [2015] 8 S.C.R.


 A        vehemently opposed this approach and placed
          reliance on the judgment of the Apex Court in the
          case of Gotak Patel Vo/kart Ltd. Vs. Collector of
          Central Excise, Befgaon reported in 1987 (28) ELT
          53 (SC) so as to contend that show cause notice
 B        cannot be issued beyond six months under Section
          11-A[(sic); Section 28]of the Act, and that after 14
          years petitions cannot be asked to face the
          adjudication process. This is how the petitioners
          pressed for the decision on merits."
 c
          19) It shows that High Court was not oblivious of Section
   28 of the Act and that determination of such an issue is to be
   more appropriately in the hands of Adjudicating Authority. It
   also appears that High Court might have disposed of the writ
 D petition with liberty to the Adjudicating Authority to initiate
   proceedings under Section 28 of the Act. Curiously, such an
   action was not taken at the instance of the appellant which
   contended otherwise, as is clear from the following narration:

 E        "The learned counsel for the petitioners contended
          that this Court would not be justified in dismissing
          the petition as not maintainable on the grounds of
          availability of alternate remedy especially when the
          petition was entertained, kept pending for 14 years
 F        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 this
          Court in the case of Nehawas Steel Traders Vs.
 G        Union of India, 1993 (68) ELT 721 (Born.). 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
 H
          pass appropriate adjudication order. The
  D.R. ENTERPRISES LTD. v. ASSISTANT COLLECTOR                        1145
            OF CUSTOMS [A. K. SIKRI, J.)

      respondents having failed to take any follow up                 A
      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               B
      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, coritrary argument is nothing but a desperate attempt C
to chicken out of the situation which is appellant's own creation.
This kind of somersault, taking c:Ompletely 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.          D

        21) The position would have been different if it was a
 case of inherent lack of jurisdiction. That is not so. The powers
 of the High Court under Article 226 of the Constitution, while
 issuing appropriate writs, are very wide. ,Even if there is an       E
 alternate remedy that may not preclude the High Court from
exercising the jurisdiction in a particular case. In the face of
alternate statutory remedies, when the High Court declines to
exercise the jurisdiction under Article 226 of the Constitution,
it is a self imposed restriction only. In the instant case, what is   F
pertinent is that it is the appellant which not only made a prayer
in the writ petition for deciding the issue in question, even at
the time of hearing (as noted above), it is the appellant which
pressed for the decision with the submission that existence of
alternate remedy should not deter the Court to render the             G
decision on merits. In such a situation, the objection, if any, to
the maintainability of the writ petition could have been taken
by the respondent and it does not behove the appellant to raise
this objection in the present appeal after pleading in the High       H
Court that the matter be decided on merits.
1146         SUPREME COURT REPORTS                   [2015) 8 S.C.R.


 A           22) For the same reason, the argument that the issue
       involved disputed question offact is also not available. Order
       of the High Court clearly records that the appellant had
       requested the High Court to decide the issue on the basis of
       material on record.
 B
             23) We are not impressed with the argument of the
       appellant that the matter had become time barred. In fact,
       reasons for rejecting this argument have already surfaced while
       discussing the preceding submission. However, we would like
 C     to recapitulate them with focus on the issue at hand which is
       being addressed now.

           24) The issue as to whether the import of Web Printing
   Machine was covered by Notification No. 114/80-CUS dated
 o 19.06.1980 was pending in the High Court in respect of which
   petition was filed by the appellant itself way back in the year
   1988 raising this issue. The appellant even got the interim
   order in its favour. When the writ petition came up for final
   hearing, the appellant impressed the Court to decide the said
 E issue. In such a situation, qu~stion of limitation does not arise
   inasmuch as it is not a case where proceedings under Section
   28 of the Act were taken out giving any show cause notice
   under the said section. The question of limitation would have
   arisen only in case the respondent had issued show cause
 F 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
 G 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.

 H          26) As pointed out above, the case of the appellant is
  D.R. ENTERPRISES LTD. v. ASSISTANT COLLECTOR                         1147
            OF CUSTOMS [A. K. SIKRI, J.)

 that the High Court has given undue weightage to the two              A
 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           B
 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 leaflets furnishing technical data and       C
 description of the printing machine in question along with Bill
 of Entry and certificate showing date 08.02.1987 issued by
 the manufacturer of the machine M/s. Harris Graphics
 Corporation, USA. The other part of the document is nothing           D
 but a correspondence made by the appellant, its Clearing and
 Holding Agent and one M/s. S.L. Kulkarni &Co., which deals
 in printing machinery, projecting themselves to be the Indian
 agent of M/s. Harris Graphics Corporation, USA. The said
 second part of the documents can Well be described as self            E
 serving evidence. Likewise, documents produced by the
 respondent were also 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 28.09.1988, while complying with the part of the directions        F
 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.
                                                                ,, .
        27) Thereafter, the High Court formulated the question         G
 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 copies per hour so
 as to entitle it to claim exemption under Notification No. 114/
 80-CUS, as amended from time to time. On that touchstone,             H
1148         SUPREME COURT REPORTS                     (2015] 8 S.C.R.


 A     the High Court has examined, appreciated and analyzed all
       the documents produced by both the parties. This detailed
       analysis runs into several pages. It is not necessary for us to
       go through this evidence and discuss the same as we find that
       the ultimate conclusion drawn by the High Court in this behalf
 8     is correct and plausible. We would, however, like to reproduce
       the following observations of the High Court wherein the
       certificates of manufacturer produced by the appellant vis-a-
       vis the leaflets giving technical details of the machine which
       were found along with the machine, are discussed:
 c
         "38. The bare reading of the above certificate gives a
         picture that Model-15-H is with JF-25, JF-4, JF-10. If
         this certificate is read in the light of leaflets referred to
         hereinabove, the relevant portions of which are extracted
 D       in the above par, it would be clear that the manufacturer
         wants to suggest that the folder JF-25-8 has been
         upgraded to JF-25, with additional folders JF-4 and JF-
         10. Firstly, as already stated, the leaflets do not support
         this picture sought to be projected through the above
 E       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
 F
         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
         28'h September, 1988 shows that the folder base of the
 G
         machine in question was found as JF-25-8 model. Had
         the folder been upgraded from JF-125-8to JF-25 then
         the machine in question ought to have been with modified
         folder JF-25 and could not have been with folder base
 H       JF-25-8. Fourthly, other modified folders JF-4 and JF-
D.R. ENTERPRISES LTD. v. ASSISTANT COLLECTOR                     1149
          OF CUSTOMS [A. K. SIKRI, J.)

 10 are not to be found in the inspection note, obviously,       A
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 appreciatioh. The letter of Mis           B
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        c
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
                                                                 D
establish modifications 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        E
base, machine cannot be said to be capable of taking
additional load. Therefore, it cannot given higher speed
so as to given 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          F
upon. The same cannot be given any credence. The
said evidence, for the aforesaid reasons, is not
acceptable to us.

39. One more aspect of the above certificate needs to            G
be noticed. This certificate of the manufacturer is dated
3rd June 1986. The contract to purchase machine in
question has been shown to be dated 24th March, 1987.
The copy of the contract dated 24th March, 1987 as
already observed hereinabove has not been produced               H
1150         SUPREME COURT REPORTS                 [2015] 8 S.C.R.


 A       on record. One more document styled as agreement
         dated 24th April 1986 (Exh. G) is produced on record.
         Both these documents are prior to the date of formation
         of contract i.e. 24th March, 1987. No evidence is on
         record to connect these documents with the subject
 B      contract dated 24th March, 1987 or with the machine in
        question. It is not known whether the same agreement
        culminated in the final contract dated 24th March, 1987
        or the same was modified or a new contract has taken
        place. It is settled principle of law of contract that the
 c      document prior to formation of contract cannot be taken
        into account to interpret or to understand the contract in
        question unless it is shown to be a part of the same
        contract or negotiation. Therefore, for want of material
        on record, the said documents cannot be treated as part
 D
        of the same contract. Even otherwise the time gap
        between the alleged agreement dated 24th April 1986
        (Exh. G) and contract (dated 24th March, 1987) is such
        that it was all the mere necessary to prove that the said
 E      document was the part of the subsequently concluded
        contract."

            28) We are in agreement with the view taken by the High
     Court on merits, having regard to the fact that burden of proof
 F   was on the appellant to establish that the machine imported
     by it generates more than 35,000 composite impressions or
     copies per hour. The appellant has failed to do so.

           29) As a result, the appeal fails and is hereby dismissed
     with no order as to costs.
G
     Kalpana K. Tripathy                           Appeal disposed of.