IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2469 OF 2008 WRIT PETITION NO.2469 OF 2008 WRIT PETITION NO.2469 OF 2008 Shri Manish Kalvadia ..Petitioner. V/s. Union of India & Ors. ..Respondents. Mr.G.Harishankar with Uday P.Warunjikar for petitioner. Mr.R.Ashokan for respondents. CORAM : P.B.MAJMUDAR AND CORAM : P.B.MAJMUDAR AND CORAM : P.B.MAJMUDAR AND J.P.DEVADHAR, JJ. J.P.DEVADHAR, JJ. J.P.DEVADHAR, JJ. DATED : 18TH NOVEMBER, 2008 DATED : 18TH NOVEMBER, 2008 DATED : 18TH NOVEMBER, 2008 P.C. :- P.C. :- P.C. :- 1. This petition is filed seeking an order directing the customs authorities to permit re export of the diamonds belonging to the petitioner. 2. On 21/4/2003 the petitioner was trying clandestinely to bring into India 5877 carats of diamonds by crossing through the Green Channel at the Airport without declaring the said diamonds. The petitioner was intercepted while crossing the Green Channel and the undeclared diamonds were seized. On completion of investigation, a show cause notice was issued. Thereupon the petitioner filed an application on 16/1/2004 before the Settlement Commission agreeing - = : 2 : = - to pay duty and seeking immunity from fine and penalty. By an order dated 8/2/2008, the Settlement Commission allowed the application filed by the petitioner by settling the duty at Rs.83,11,724/- and also imposed fine and penalty. The petitioner has complied with the said order. 3. Thereafter, the petitioner filed an application seeking re export of the very same diamonds under section 74 of the Customs Act, 1962 so as to avail the drawback of duty paid on the said diamonds. As the customs authorities have not passed any order on the said application, the present petition is filed. 4. It is contended on behalf of the petitioner that once the duty settled is paid along with fine and penalty, the petitioner is entitled to re export the diamonds and seek drawback of duty paid on the said diamonds as per section 74 of the Customs Act. In the written arguments filed on behalf of the petitioners, it is contended that the Settlement Commission has no powers whatsoever to grant any amnesty from payment of full and true duty liability of an applicant before it. It is contended that once the duty has been paid on imported goods, there is no provision under the Customs Act or under any cognate statute to deny duty - = : 3 : = - drawback. 5. In our opinion, the claim of the petitioner is wholly misconceived. In the present case, the petitioner was clandestinely seeking to smuggle the diamonds into India and, therefore, the said diamonds were liable to be confiscated and the petitioner was liable for penal action. Having approached the Settlement Commission and having obtained immunity from prosecution by stating that he is willing to pay duty and having in fact paid duty, fine and penalty, the petitioner could not have made an application seeking to re export the goods under section 74 of the Customs Act so as to claim the duty paid on the diamonds as per the order of the Settlement Commission as drawback. In other words, the petitioner on the one hand has secured immunity from prosecution by agreeing to pay customs duty as determined by the Settlement Commission and on the other hand, the petitioner wants to get back the duty paid pursuant to the order passed by the Settlement Commission by seeking to re export the diamonds under section 74 of the Customs Act. 6. To allow such application would defeat the very object of settlement proceedings. Section 74 of the Customs Act would not be applicable to the cases - = : 4 : = - settled under the settlement proceedings. Having voluntarily adopted the settlement proceedings and having obtained immunity from penal action, the petitioner cannot now turn around and state that the settlement proceedings are invalid. In our opinion, the application of the petitioner seeking re export of the goods under section 74 of the Customs Act is wholly misconceived. 7. Accordingly, we see no merit in the petition and the same is hereby dismissed. (P.B.MAJMUDAR (P.B.MAJMUDAR (P.B.MAJMUDAR J.) J.) J.) (J.P.DEVADHAR, J.) (J.P.DEVADHAR, J.) (J.P.DEVADHAR, J.)