Dmt 1 wp2692-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2692 OF 2011 Affable Fisheries Pvt. Ltd., .. Petitioner. Versus Union of India & Anr. .. Respondents. ..... Mr. Prakash Shah i/by Yogesh M. Rohira for the Petitioner. Mr. Pradeep S. Jetly for the Respondents. ...... CORAM : DR.D.Y.CHANDRACHUD & A. A. SAYED, JJ. 14 November 2011. P.C. : The Petitioner seeks enforcement of an order dated 21 February 2011 passed by the Settlement Commission under Section 127 (C) (5) of the Customs Act, Dmt 2 wp2692-11 1962. The Petitioner purchased a Tug on 18 February 2010 in Malaysia which was towed to Mumbai Port. The Petitioner filed a Bill of entry on 2 July 2010 declaring the value as US$ 19,60,000/- CIF. The Tug was detained on suspicion that it was smuggled into India by evading customs duty. On 24 August 2010 the Petitioner filed an application for settlement before the Settlement Commission. On 29 September 2010 the Settlement Commission directed provisional release of the Tug and directed the Revenue to issue a notice to show cause. Following this, on 20 December 2010 a show cause notice was issued to the Petitioner inter alia proposing appropriation of cash security furnished in the amount of Rs. 35,02,525/- towards recovery of interest and penalty. 2. The Settlement Commission has passed a final order under Section 127 (C) (5) on 21 February 2011 in the Dmt 3 wp2692-11 following terms : “Customs Duty : The total Customs Duty liability in the case, inclusive of the differential duty liability of Rs.53,08,654/- accepted additionally by the applicant, is settled at Rs.1,40,10,083/-. The applicant has fully paid the aforesaid amount of duty as confirmed by Revenue. Interest :- As discussed and concluded above, no interest liability under Section 28AB of the Customs Act, 1962 arises in this case. Fine :- The seized / provisionally released TUG is held liable to confiscation. The Bench orders confiscation of the said TUG but allows the same to be redeemed on payment of fine of Rs. Dmt 4 wp2692-11 2,00,000/- (Rupees Two Lakhs Only) in lieu of confiscation. The Bench waives fine (in lieu of confiscation) in excess of the aforesaid amount. Penalty :- For reasons discussed above, the Bench imposes a penalty of Rs.2,00,000/- (Rupees Two Lakhs Only) on the main applicant viz. M/s. Affable Fisheries Pvt. Ltd., Mumbai, and also imposes a penalty of Rs.1,00,000/- (Rupees One Lakh Only) on the co-applicant, Mrs. Roopa Patel under the provisions of the Customs Act invoked in the Show Cause Notice. The Bench grants immunity from penalty in excess of the aforesaid respective amounts to the applicant and the co- applicant. Release of Bond / Bank Guarantee / Cash Dmt 5 wp2692-11 Security:- The Bond executed by the applicnt shall be discharged and Bank Guarantee / Cash Security furnished by it shall be released upon payment of fine and penalty ordered as above of the amount remaining in balance after adjusting and appropriation towards fine and penalty from out of the cash security shall be refunded to the applicant. Prosecution :- The Bench grants full immunity to the applicant and the co-applicant from prosecution under the Customs Act, 1962 in so far as this case is concerned.” 3. The grievance of the Petitioner is that the Second Respondent who is the Commissioner of Customs (Import) has not implemented the order of the Settlement Dmt 6 wp2692-11 Commission. The Court is informed that when the Petition initially came up before the Division Bench on 21 April 2011 a statement was made on behalf of the Revenue that the proceedings against a co-noticee were still to be finalised by the Settlement Commission. This is not in dispute between the Counsel. 4. During the course of hearing of these proceedings, learned Counsel for the Petitioner has placed on record the order dated 12 July 2011 passed by the Settlement Commission in the case of a co-noticee by which the Commission has granted immunity from penalty and prosecution under the Customs Act, 1962. Since the order of the Settlement Commission has not been challenged by the Revenue, it is necessary that the order be implemented. As noted earlier, it is not in dispute that the Petitioners had furnished cash security of Rs. 35,02,525/- against the Dmt 7 wp2692-11 provisional clearance of the goods imported. The order of the Settlement Commission imposed a fine in lieu of confiscation of Rs. 2 lakhs, a penalty of Rs. 2 lakhs on the Petitioner and a further penalty of Rs. 1 lakh on M/s. Roopa Patel, a co-applicant. Learned Counsel for the Petitioner states that the Petitioner has no objection if the amount of fine and penalty is adjusted against the cash security. The Petitioner has also agreed to respond to the communication dated 15 September 2011 issued by the Deputy Commissioner of Customs within a period of one week. Learned Counsel for the Petitioner states that the Petitioner would produce the original documents for verification and would seek the return of these documents against the production of certified copies. 5. We, accordingly, dispose of this petition by directing compliance with the order of the Settlement Dmt 8 wp2692-11 Commission expeditiously and preferably within a period of four weeks from today. 6. The Petition is accordingly disposed of. There shall be no order as to costs. (Dr. D.Y. Chandrachud, J.) (A. A. Sayed, J.)