1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2754 OF 2002 Directorate of Revenue Intelligence having its office at Delhi Zonal Unit, New Delhi. ... Petitioner. V/s. 1. Settlement Commission, Additional Bench, Utpad Shulk Bhawan, Mumbai. 2. M/s.Beeta Exports, having its office at 14-A/33, 3rd floor, WEA Karol Bagh, New Delhi. ... Respondents. P.S.Jetly for the petitioner. Prakash Shah i/b. PDS Legal for respondent No.2. CORAM : V.C.DAGA AND K.K.TATED, JJ. DATED : 18th January 2010. JUDGMENT : (Per V.C.Daga, J.) Heard learned counsel for the petitioner and learned counsel respondent No.2. Perused petition. 2. The present writ petition, filed under Article 226 of the Constitution of India, is directed against the order dated 6th March, 2002 passed by the Additional Bench of Settlement Commission (Customs and Central Excise), Mumbai holding no liability under the Duty Entitlement Pass Book Scheme ( DEPB Scheme for short) 2 against respondent No.2  M/s.Beeta Exports. Petitioner contends that the said order is erroneous and unsustainable in law. Brief Facts : 3. The brief facts leading to the filing of the present petition are that the respondent No.2 is a proprietorship concern of which one Shri Anil Kapur is the sole proprietor engaged in the manufacture and export of various items. 4. The information was received by Delhi Zonal Unit of the Directorate General of Foreign Trade (DGFT) that during 1994-95, the respondent No.2 obtained several duty free advance licences under DEEC Scheme against which respondent No.2 was entitled to import various duty free items. It was, thus, alleged that without utilising the said duty exempted raw material in the manufacture of export products and without fulfilling the export obligations stipulated in the said licences, the respondent No.2 fraudulently diverted these duty exempted material to the local market with huge profit, and thereby evaded customs duty. The petitioner - Director of Revenue Intelligence, initiated investigation into the matter. 5. In the meantime, provision for settlement of cases was inserted in the Customs Act, 1962. Under the provisions of sections 127-A to 127-N of Chapter XIV-A of the said Act, Customs and Central Excise Settlement Commission ( Settlement Commission" for short) was constituted as the competent authority for settlement of cases. 3 6. The respondent No.2, taking advantage of the aforesaid provision and establishment of the Settlement Commission, filed an application dated 5th November, 1999 before the Settlement Commission praying for settlement of the dispute with the department. The said application was contested by the petitioner- Revenue. The Settlement Commission, vide its interim order dated 28th December, 1999 allowed to proceed the said application in exercise of powers under section 127-C(1) of the Customs Act. 7. The Commissioner of Customs (Exports), Mumbai vide his letter dated 19th January, 2000, inter alia; informed the Settlement Commission that the total liability against 12 advance licences and 13 bills of entry against which raw materials were imported duty free, amounting to Rs.8,45,27,048/- with interest thereon payable under the provisions of the Customs Act. 8. The case was investigated by the Settlement Commission. The Settlement Commission, vide its letter dated 17th January,2002 forwarded report to the Commissioner (Investigation) in terms of section 127-C(6) of the Customs Act, inter alia; suggesting final settlement as detailed hereinbelow: 1. Duty payable by M/s.Beeta Exports under DEEC Scheme. Rs.8,63,25,976/- 2. Duty payable by the applicant under DEEC Scheme if the applicant submits bank realisation certificates in support of fulfillment of export obligation. Rs.8,33,67,687/- 3. DEPB credit refundable by the applicant. Rs.1,51,93,195/- 4 4. DEPB Credit refundable by the applicant, if he submits evidence of deposit of Rs.40 lacs with the department. Rs.1,11,93,195/- 9. The aforesaid report was contested by the Commissioner of customs (Exports) raising various contentions, which ultimately turned down by the Settlement Commission and the final order was passed on 6th March, 2002; whereby and whereunder the case was settled and the liability was determined in the sum of Rs.8,63,25,976/- on account of violation of DEEC/ Advance Licence Scheme and Rs.8,05,122/- on account of exports under the drawback scheme. The Settlement Commission, however, held that there was no recoverable liability from the respondent No.2 on account of DEPB Scheme and and granted immunity from prosecution of any offence and penalty under the Customs Act or Indian Penal Code or any other Central Act for the time being in force. 10. Being aggrieved by the aforesaid order, the petitioner- Revenue has invoked writ jurisdiction of this Court contending that the order of Settlement Commission is erroneous on facts and law both. Rival Submissions : 11. Mr.Jetly, learned counsel appearing for the Revenue submits that the documentary evidence placed on record clearly points out fraudulent exports made by respondent No.2 which were completely ignored by the Settlement Commission. He further submits that the market enquiry was not required to be conducted since the Nibs made of gold were not the common or casually used 5 items in the normal course of domestic trade as such no registered manufacturer of the said item i.e. gold nibs was available in the local or domestic or nearby markets. According to him, market enquiry was just one of the methods to ascertain prevailing market value of the goods, however, that by itself could not said to be a sole criteria. He further submits that in normal course of international trade, there ought to be no difference between the value declared by the purchaser or seller if the business transaction is genuine. The documents submitted at Dubai Customs and value together with description of the goods given therein by the importer were on the basis of invoice given by respondent No.2 and certified by the Delhi Chambers of Commerce. According to Mr.Jetly, when it is described as fountain pen nibs in the invoice submitted before the Delhi chamber of Commerce, the unit value declared was US$ 0.30 whereas, when declared as fountain pen nibs made of 7.8 ct. gold, the value was declared as US$ 1.75/2.00. However, in the export documents, such as shipping bills and invoices submitted by respondent No.2 before the Indian Customs at the time of clearance, the value was inflated by many folds. He, thus, submits that the Settlement Commission wrongly and erroneously relied upon the certificate issued by the Delhi Chamber of Commerce, which was solely given for the purposes of establishing country of origin. It had no other evidenciary value. He, thus, submits that the impugned order of the Settlement Commission cannot stand to the scrutiny of law and is liable to be quashed and set aside. 12. In reply, Mr.Shah, learned counsel appearing for respondent submits that the present petition is not maintainable as the petitioner has no right to file this 6 petition before this Court against the order of the Settlement Commission. According to him, the petitioner was not even respondent before the Settlement Commission. In his submission, Settlement Commission is a statutory body constituted under the Customs Act and under sections 127-H of Chapter XIV-A of the said Act, as such it has full power to grant immunity as prescribed under the Act. He further submits that the petition is also not maintainable in view of section 127-J of the Customs Act as the order of the Settlement Commission passed under sub-section (7) of section 127-C is final and conclusive. Reliance is placed on section 127-J of the Customs Act in support of his submission. The judgment of the Apex Court in the case of M/s.Nirmal & Navin (P) Ltd. v. D.Ravindran, delivered in Criminal Appeal Nos.439-440 of 2002 arising out of S.L.P. (Cri) No.6884-85 of 2001 decided on 4th April, 2002 (unreported) was also pressed into service. He further submits that the officials of the Directorate of Revenue Intelligence had participated in the investigating process and took part in the proceeding before Settlement Commission and all the facts for which the investigations were carried out by the petitioner have been brought to the notice of the Settlement Commission as such impugned order is based on well considerations with which no fault can be found. 13. Mr.Shah submits that before the Settlement Commission three contentions were raised relating to: (i) duty liability under DEEC Scheme; (ii) duty liability under DEPB Scheme; and (iii) duty liability under Drawback Scheme. He further submits that all the said three grounds were dealt with by the Settlement Commission in detail in its well considered order and that the order of the Settlement Commission has been 7 complied with by the respondent No.2 by depositing an approximate amount of Rs.8 crore. He further submits that this writ petition cannot be treated as an appeal against the order of the Settlement Commission. According to him, this Court is not expected to examine the validity of the impugned order except to the extent as to whether or not the view taken by the Settlement Commission is a reasonable and possible view on the available material and appreciation thereof in the facts and circumstances of the case. According to him, if this test is satisfied, the impugned order cannot be interfered with. Consideration : 14. Having heard both parties, having perused the order of the Settlement Commission, at the outset, we must observe that Chapter XIV-A containing sections 127-A to 127-N inserted in the Customs Act and the constitution of the Settlement Commission thereunder to settle the cases with power to grant immunity from prosecution, if considered in its proper perspective, then it would be clear that under the Schemes of the Act the scope for judicial review is very limited. Every order passed by the Settlement Commission is made conclusive and final. Secondly, the writ jurisdiction cannot be exercised like appellate jurisdiction. The writ court not being a court of appeal is not expected to reappreciate evidence once again. Writ court is duty bound to consider as to whether or not the judicial review was properly done by the Settlement Commission and the view taken by the Settlement Commission is based on appreciation of evidence available on record and is a reasonable and possible view based on relevant material. 8 15. Having gone through the documents produced on record and the impugned order, it is not possible to hold that the impugned order is perverse warranting interference at the hand of this Court. 16. Mr.Jetly, during the course of hearing, vehemently attacked the impugned order relying to the drawback recovery which revolving around the question of alleged over-valuation relating to the exports made. The Settlement Commission having considered this aspect of the matter recorded its findings reading as under: 13. In relation to the DEPB Scheme, the Applicant has submitted that there is no over-valuation relating to the exports made. The evidence adduced by the revenue that import invoice submitted by the Dubai importer to Dubai Customs where the value is shown as US$ 0.30 and the Invoice submitted by the Applicant to Delhi Chamber of Commerce are not relevant piece of evidence in support of the contention of the Revenue. It is argued that import invoice submitted by the Dubai importer to Dubai Customs could be a manipulated one to pay less duty to Dubai Customs. That invoice has not been issued by the Applicant. Besides, invoice have been obtained relating to a few consignments and not all. This being a document not issued by him, he could not have manipulated for various reasons. In relation to the invoice submitted to Delhi Chamber of Commerce by the Applicant, it is stated that they have done so with a view to help the importer of the concerned goods. However, it is reiterated that the certificate of the Delhi Chamber of Commerce is solely for the purpose of Country of Origin and has no other evidenciary value. The contention of the applicant appears reasonable. For an act of omission and commission by a third 9 party, namely, the importer at Dubai, the liability cannot be fastened to the exporter in India. 14. This is more so when it is viewed against the background that the Applicant has realised the export proceeds and has submitted the relevant documents from the bank.; Once the amounts stands realised, it cannot be said that export value shown in the document is inflated one with an ulterior motive. The country is interested in getting foreign exchange to the extent indicated in the relevant shipping bills and once that is being done, perhaps, it would not be a proper conclusion to allege that the Applicant has manipulated the documents to defraud Customs duty at Dubai and therefore the theory advanced by the Applicant is reliable. 17. Reading of the aforesaid appreciation of evidence done by the Settlement Commissioner in the backdrop of the admitted fact that the respondent No.2 has realised the export proceeds and submitted relevant document from the bank, in our view, the Settlement Commission has rightly concluded that the export value shown in the documents cannot be said to be inflated much less with ulterior motive. This being the finding of fact by the Settlement Commission based on appreciation of evidence, it is not possible for us to disturb the same and take contrary view. 18. The Settlement Commission has relied upon the circular issued by the Board as discussed in paras- 17 to 22 of the impugned order. Thus, having taken overall survey of the evidence available on record; appreciation thereof; and sustainable findings recorded by the Settlement Commission, the impugned order based on appreciation of evidence cannot be faulted. Having said 10 so, the writ jurisdiction of this Court also does not permit this Court to interfere with the impugned order. 19. Having so observed, let us turn to the certiorari jurisdiction of this Court. In the case of Hari Vishnu Kamath v. Ahmed Ishaque, AIR 1955 SC 233, the Apex Court made following observations in regard to issuance of writ of certiorari under Articles 226 and 227 of the Constitution: "(1) `Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) `Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of `certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to re-hear the case on the evidence, and substitute its own findings in  certiorari . These propositions are well settled and are not in dispute." 20. In the case of Waryam Singh v. Amarnath, AIR 1954 SC 215, the Apex Court observed as under: 11 "An error in the decision or determination itself may also be amenable to a writ of  certiorari but it must be a  manifest error apparent on the face of the proceedings , e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by  certiorari but not a mere wrong decision." 21. In the case of Mohd. Yunus v. Mohd. Mustaqim, AIR 1984 SC 38, the Apex Court ruled that where the High Court is called upon to correct an error of fact or law as an appellate Court or Tribunal, it will not review or reweigh the evidence upon which the determination of the inferior Court or Tribunal purports to be vested or to correct errors of law in the decisions. 22. In the case of Sangram Singh v. Election Tribunal, AIR 1955 SC 425, the Apex Court held that the High Courts do not, and should not, act as Courts of appeal under Article 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognised lines and not arbitrarily; and one of the limitations imposed by the Courts on themselves is that they will not exercise writ jurisdiction unless substantial injustice has ensued, or is likely to ensue. The High Courts cannot allow themselves to be turned into courts of appeal or revision to set right mere error of law which do not occasion injustice in a broad and general sense, for though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as 12 speedily as may be. Thus, the High Court is not expected to interfere with the well considered decision. Based on these well settled principles, if the impugned order is examined, no fault can be found with the same. 23. In the result, petition is liable to be dismissed. Accordingly, rule stands discharged with no order as to costs. (K.K.TATED, J.) (V.C.DAGA J.)