When the document is in the custody of a party – it has to produce the same without relying on the principle of burden of proof . The State is the largest litigant as often noted. It stands in a category apart having a solemn and constitutional duty to assist the court in dispensation of justice. The State cannot behave like a private litigant and rely on abstract theories of the burden of proof. National Insurance Co. Ltd. vs. Jugal Kishore, (1988) 1 SCC 626, observing as follows: ­ “10. Before parting with the case, we consider it necessary to refer to the attitude often adopted by the Insurance Companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal. In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence. Even in the instant case had it been done so at the appropriate stage necessity of approaching this Court in civil appeal would in all probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be over­emphasised.”

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 593­594 OF 2020
(arising out of SLP (Civil) No(s). 30371­30372 of 2017)
M/S. GRANULES INDIA LTD. …APPELLANT(S)
VERSUS
UNION OF INDIA AND OTHERS …RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
Leave granted.

  1. The appellant is aggrieved by orders dated 07.12.2016 and
    14.06.2017, rejecting the writ petition as also the review application
    arising from the same.
  2. The appellant, during the year 1993 imported 96 tons of the
    chemical “Acetic Anhydride” under three Bills of Entry bearing nos.
    290, 291 and 300 dated 01.12.1993, 01.12.1993 and 14.12.1993
    1
    through the Inland Water Container Depot (ICD), Hyderabad under
    the Advance Licence Scheme. It claimed clearance of the
    consignment free of import duty in terms of Customs Notification
    nos. 203/1992, 204/1992, both dated 19.05.1992. The notification
    contained a scheme permitting import without payment of customs
    duty subject to fulfilment of certain norms and conditions. The
    Notification nos. 203/1992 and 204/1992 were amended by a
    Notification no. 183/1993 dated 25.11.1993, by which the subject
    imports became liable for duty, the exemption having been
    withdrawn. The Notification dated 25.11.1993 was further amended
    by another clarificatory Notification no. 105/1994 dated 18.03.1994
    permitting the import of the chemical without customs duty subject
    to certain terms and conditions. The clarificatory notification was
    necessitated to obviate the difficulties faced by the importers like
    the appellant, who had imported the chemical under the advance
    licence issued by the Director General of Foreign Trade prior to the
    amendment Notification no. 183/1993 dated 25.11.1993.
    2
  3. The appellant was allowed to clear the consignments under the
    aforesaid three Bills of Entry without payment of duty.
    Subsequently the respondents issued show cause notice under
    Section 28 (1) of the Customs Act, 1962 with regard to the same
    consignments as having been imported after 25.11.1993. The
    appellant made a representation on 20.11.1997 seeking exemption.
    It was considered favourably in respect of three other consignments
    under Bill of Entry No.312 dated 12.09.1993, Bill of Entry No.28
    dated 10.02.1994 and Bill of Entry No.27 dated 09.02.1994. The
    entire consignments were imported under the same advance licence.
    In pursuance of the show cause notice the appellant was held liable
    to duty by order dated 12.2.1998 with regard to the consignments
    under three Bills of Entry bearing nos.290, 291 and 300 dated
    01.12.1993, 01.12.1993 and 14.12.1993 respectively though these
    were also under the same advance licence. The respondents while
    considering the reply to the show cause notice and fixing liability for
    payment of customs duty did not make any reference to their
    notification dated 18.03.1994. The Commissioner (Appeals) on the
    3
    same reasoning rejected the appeal leading to the institution of the
    writ application.
  4. Dismissing the writ application, the High Court opined that no
    mandamus for exemption could be issued. The consignments were
    admittedly imported after 25.11.1993 and before the clarificatory
    notification dated 18.03.1994. Thus, there was no arbitrariness on
    part of the respondent. The appellant preferred a review application
    inter alia relying upon a Division Bench order of the Andhra Pradesh
    High Court in Shri Krishna Pharmaceuticals Limited vs. Union
    of India, (2004) 173 ELT 14. Rejecting the plea, the High Court
    opined that since the appellant did not produce the clarificatory
    notification along with the writ petition and neither were the
    respondents aware of the clarificatory notification the appellant was
    not entitled to any relief.
  5. Shri B. Adinarayana Rao, learned senior counsel appearing on
    behalf of the appellant, submitted that denial of exemption to the
    consignment actually imported after 25.11.1993 under the advance
    4
    licence obtained prior to 19.05.1992 notwithstanding the
    clarificatory notification dated 18.03.1994 holding the appellant
    liable for customs duty is completely unsustainable. Special Leave
    Petition (Civil) No.14288 of 2004 (CC No.5418/2004) preferred
    against the order in Shri Krishna Pharmaceuticals Limited
    (supra) was dismissed. The mere failure to enclose a copy of the
    notification could not be a ground for denial of relief. Denial of
    exemption in the facts and circumstances of the case in view of the
    statutory notifications were per se arbitrary.
  6. Learned counsel appearing for the State supported the order of
    the High Court and urged that the consignments having been
    imported after withdrawal of the exemption and before issuance of
    the clarificatory notification was justified.
  7. We have considered the submissions on behalf of the parties
    and are of the considered opinion that the order of the High Court is
    completely unsustainable. The entire consignment was imported
    under one advance licence issued to the petitioner prior to
    5
    19.05.1992. The fortuitous circumstance that part of the
    consignment was actually imported prior to 25.11.1993 and the rest
    subsequent thereto is hardly relevant in view of the clarificatory
    notification dated 18.03.1994 that the exemption would continue to
    apply subject to fulfilment of the specified terms and conditions. It
    is not the case of the respondents that the consignments imported
    subsequently did not meet the terms and conditions of the
    exemption. In Shri Krishna Pharmaceuticals Limited (supra), the
    High Court observed as follows:
    “7. …Obviously, the petitioner had the facility
    of exemption from payment of the customs
    duty under the scheme known as Advance
    License Scheme, but the same was banned
    through notification dated 25.11.1993 and
    later through another clarificatory notification
    the same was extended by Notification dated
    18.3.1994. Thus, since the Government itself
    has clarified by its second notification
    providing exemption, we are inclined to hold
    that the petitioner shall be entitled to be
    exemption for all the three consignments as
    long as the three consignments are imported
    under the Advance License scheme. Moreover,
    it is not the case of the respondents that these
    three consignments are not covered under the
    Advance License scheme.”
    6
  8. It is unfortunate that the High Court failed to follow its own
    orders in a similar matter. The High Court further gravely erred in
    holding that the authorities of the State were also unaware of the
    clarificatory notification and neither did the appellant bring it on
    record. The State is the largest litigant as often noted. It stands in a
    category apart having a solemn and constitutional duty to assist the
    court in dispensation of justice. The State cannot behave like a
    private litigant and rely on abstract theories of the burden of proof.
    The State acts through its officer who are given powers in trust. If
    the trust so reposed is betrayed, whether by casualness or
    negligence, will the State still be liable for such misdemeanor by its
    officers betraying the trust so reposed in them or will the officers be
    individually answerable. In our considered opinion it is absolutely
    no defence of the State authorities to contend that they were not
    aware of their own notification dated 18.09.1994. The onus heavily
    rests on them and a casual statement generating litigation by State
    apathy cannot be approved.
    7
  9. We can do no better than quote the following extract from
    National Insurance Co. Ltd. vs. Jugal Kishore, (1988) 1 SCC
    626, observing as follows: ­
    “10. Before parting with the case, we consider it
    necessary to refer to the attitude often adopted
    by the Insurance Companies, as was adopted
    even in this case, of not filing a copy of the policy
    before the Tribunal and even before the High
    Court in appeal. In this connection what is of
    significance is that the claimants for
    compensation under the Act are invariably not
    possessed of either the policy or a copy thereof.
    This Court has consistently emphasised that it is
    the duty of the party which is in possession of a
    document which would be helpful in doing
    justice in the cause to produce the said
    document and such party should not be
    permitted to take shelter behind the abstract
    doctrine of burden of proof. This duty is greater
    in the case of instrumentalities of the State such
    as the appellant who are under an obligation to
    act fairly. In many cases even the owner of the
    vehicle for reasons known to him does not
    choose to produce the policy or a copy thereof.
    We accordingly wish to emphasise that in all
    such cases where the Insurance Company
    concerned wishes to take a defence in a claim
    petition that its liability is not in excess of the
    statutory liability it should file a copy of the
    insurance policy along with its defence. Even in
    the instant case had it been done so at the
    appropriate stage necessity of approaching this
    Court in civil appeal would in all probability have
    been avoided. Filing a copy of the policy,
    8
    therefore, not only cuts short avoidable litigation
    but also helps the court in doing justice between
    the parties. The obligation on the part of the
    State or its instrumentalities to act fairly can
    never be over­emphasised.”
  10. The impugned orders are therefore held to be unsustainable
    and are set aside. The appeals are allowed.
    .……………………….J.
    (Navin Sinha)
    ………………………..J.
    (Krishna Murari)
    New Delhi,
    January 23, 2020
    9