ORDER : (PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA) 1 The present writ petition has been filed seeking quashing and setting aside of the Order-in-Original dated 08.10.2025 passed by the Additional Commissioner of Customs, Surat imposing personal penalty of Rs.425,27,99,100/- under Section 114 of the Customs Act, 1962. 2 At the outset, when this Court has pointed out to learned advocate for the petitioner Mr.Paresh Dave about the alternative remedy of filing the appeal under the Customs Appeal Rules, 1962, against the impugned order, it is submitted that since the order is passed bereft of jurisdiction and the penalty which has been imposed is disproportionate, this Court has the jurisdiction and authority to examine the impugned order. 2.1 It is submitted by learned Advocate Mr.Dave that the petitioner is a local supplier who supplies natural diamonds to M/s. Universal Gems situated in Special Economic Zone (SEZ) at Sachin, Surat, is fastened with exorbitant penalty. It is submitted that the action of the respondents in passing the aforesaid order is without jurisdiction as both, i.e. the natural diamonds as wells as artificial (lab grown diamonds) are freely exported and hence the penalty which is imposed by the impugned order for felicitating the export of the diamonds by M/s. Universal Gems is required to be quashed and set aside. 2.2 In support of his submission learned advocate Mr.Dave for the petitioner has placed reliance on the decision of this Court in the case of Shangrila Latex Industries Ltd vs. Union of India 2016 (340) E.L.T. 465 (Guj.), judgement of the Andhra Pradesh High Court in the case of Commissioner of Customs & Central Excise, Hyderabad-II Vs. H.B.Cargo Services., 2011 (268) E.L.T. 448 (A.P), and finally on the judgement of the Supreme Court in the case of Chairman-cum-Managing Director, Coal India Limited & Anr Vs. Mukul Kumar Choudhuri & Ors., (2009) 15 SCC 620 , with regard to proportionality of punishment (penalty) imposed upon the petitioner which is exorbitant. 3 Per Contra, learned Senior Standing Counsel Mr.Shashvata Shukla appearing for the respondents, has referred to the provisions of Sections 113 and Section 114 of the Customs Act, 1962 and submitted that, in fact, the petitioner has felicitated the export of the diamonds of various firms i.e. six in number which are mentioned in the impugned order amounting to Rs.425 crores. Thus, it is urged that the petitioner having an alternative remedy, the present writ petition is required to be dismissed. 4 We have heard the learned advocates appearing for the respective parties. 4.1 It is the case of the petitioner, that he learnt the process of assorting diamonds in the year 2000, and thereafter was engaged in trading as a Broker in diamonds in May, 2001. He used to purchase rough selection of diamonds, and sell the same in the market after assorting them in local market, and the year 2012, he opened his workshop for processing of rough diamonds. However, after Covid-19 pandemic he started working as broker in diamonds, and the trading activity has been discontinued since May, 2021. 4.2 M/s. Universal Gems commenced its business activities in SEZ, Surat from 25.02.2021. On an information received that M/s. Universal Gems attempted to export Cut and Polished Diamonds mixed with polished lab grown diamonds in guise of lab grown diamonds under two shipping bills nos. 4004674 dated 21.05.2021 and 4004784 dated 25.05.2021, for which they had no permission, and accordingly, the consignment was kept on hold by the Customs authority, and examination of the consignment was done on 27.05.2021, and it was noticed that large number of consignment was mis- declared and their was also vast variation in weight also. Accordingly, search was conducted at the premises of M/s. Universal Gems and various documents were seized, and further investigation was done. Ulitmately, after issuing a show cause notice to various persons including the petitioner and after hearing them, the impugned order of penalty is passed by the respondent no.2. 4.3 The findings recorded by the Customs Authority are as under: “34. Discussion and Findings: I have gone through and carefully examined the facts and evidences available on record, defence submissions, records of personal hearing, the relevant legal provisions envisaged under the Customs Act, 1962, SEZ Act, 2005 and various rules made there under, the relied upon documents etc. 4.3 The findings recorded by the Customs Authority are as under: “34. Discussion and Findings: I have gone through and carefully examined the facts and evidences available on record, defence submissions, records of personal hearing, the relevant legal provisions envisaged under the Customs Act, 1962, SEZ Act, 2005 and various rules made there under, the relied upon documents etc. I have carefully studied all the Statements of the persons recorded under Section 108 of the Customs Act, 1962 (which is not being reiterated for the sake of mere repetition), the fact that the said persons whose statements were recorded under Section 108 of the Customs Act, 1962 wherein they agreed with the facts, as follows, and also that each of their version fitted into the others admission during the recording of their Statements, which in crescendo corroborates the subject facts on record, listed as follows: XXX XXX XXX 34.2 I find that on the basis of information that M/s. Universal Gems was attempting to export Cut and Polished Natural Diamonds (CPD) in the guise of lab grown diamonds, two consignments covered under shipping bills bearing nos. 4004674 dtd. 21.05.2021 and 4004784 dtd. 25.05.2021 were kept on hold and examined by the officers of DRI and SIIB, Customs and found to be astronomically higher in quantity and appeared natural diamonds instead of lab grown as declared. Hence, the said consignments were therefore detained under Panchnama dtd. 27/28.05.2021 and Panchnama dtd. 29.05.2021. 34.3 Further Lab testing of detained diamonds was done and it was found that: I. M/s. Universal Gems had hugely mis-declared the quantity of diamonds attempted to be exported under shipping bills having nos. 4004674 dtd. 21.05.2021 and 4004784 dtd. 25.05.2021 as shown in table below: II. Further, the Diamond Identification reports issued by IDI, Surat, also revealed that out of the total 58089.13 carats of diamonds being attempted to be exported, only 469.12 carats were lab grown diamonds and rest were natural diamonds. The details are as under: weight in Cts (carats) Therefore, I find that out of total quantity, 99.2% of diamonds are natural diamonds which were being tried to be exported fraudulently in guise of Cut Polished Lab Grown Diamonds. III. The details are as under: weight in Cts (carats) Therefore, I find that out of total quantity, 99.2% of diamonds are natural diamonds which were being tried to be exported fraudulently in guise of Cut Polished Lab Grown Diamonds. III. Hence, due to the presence of mere 469.12 carat of lab grown diamonds in total 58089.13 carats of the seized two export consignments, I find that M/s Universal has either illegally procured or arranged cut and polished natural diamonds and the same were with huge mis-declaration of quantity in which about 99.2% of diamonds were ‘Cut and Polished Natural Diamonds’ in the guise of ‘Cut and Polished Lab Grown Diamonds’ for which they did not have the required permission from the competent authority.” 4.4 It is further recorded that from the lab testing of the detained diamonds, it was found that the entities mentioned in the order has mis-declared the quantity of diamonds attempted to be exported under shipping bills which were amounting to (M/s.Universal Gems as 58089.13 carats) only 469.12 carats carats were lab grown diamonds and rest were natural diamonds. Hence, the total quantity of 99.2% of diamonds were natural diamonds which were being attempted and tried to be exported fraudulently in guise of Cut Polished lab grown diamonds. 4.5 The role described of the present petitioner by the authorities in felicitating such dubious export is as under: “35.1. I find that during the course of investigation, on scrutiny of "Keshav" mark Register resumed during search conducted at M/s Universal Gems, Unit no. 363 & 364, Plot no. 239, Surat SEZ. Sachin, Surat on 12.03.2022, it is found that on page No. 9 of the said register export wise transactions are hand written in the name of "Vijaybhai Gadhiya". I find that during the course of investigation, on scrutiny of "Keshav" mark Register resumed during search conducted at M/s Universal Gems, Unit no. 363 & 364, Plot no. 239, Surat SEZ. Sachin, Surat on 12.03.2022, it is found that on page No. 9 of the said register export wise transactions are hand written in the name of "Vijaybhai Gadhiya". In this admitted/confirmed that these entries are related to the supply of natural regard, Shri Vijay Ghanshyam Gadhiya in his statement dated 10.06.2022 diamonds to Shri Meet Kanubhai Kachhadiya from various diamond owners/traders through him; that on right side of this page, details of date wise export consignment of natural diamond and commission to be received by Shri Meet in respect of supplies arranged by him and the left side contains the details of commission received against the consignment of natural diamonds; that these consignments of natural diamonds were supplied to Shri Meet Kanubhal Kachhadiya through him for exports during the period from 11.03.2021 to 18.05.2021; that he was aware that Shri Meet Kachhadiya was getting commission of approximately 1% of the value of diamonds exported. Further, the above said facts has also been re-confirmed by Shri Vijay Gadhiya in his statement dated 22.12.2023 & 04.04.2024. The total value of the diamonds exported by M/s. Universal Gems, which were Shri comes to supplied through Vijay Ghanshyam Gadhiya Rs 425,27,99,100/- (Rs. Four Hundred Twenty Five Crores Twenty Seven Lakhs Ninety Nine Thousand One Hundred only) as detailed in Annexure-B to the SCN. 35.2. From the above facts and circumstances, I find that Shri Vijay Ghanshyam Gadhiya has full knowledge that the natural cut & polished Diamonds valued at Rs.425,27,99,100/- (Rs. Four Hundred Twenty Five Crores Twenty Seven Lakhs Ninety Nine Thousand One Hundred only) supplied through him to Shri Meet Kanubhai Kachhadiya were to be illegally exported by M/s Universal Gems, that he knowingly and intentionally facilitated and abetted the illegal export of natural diamonds on commission basis by way of supply of natural cut & polished diamonds through him to Shri Meet Kanubhai Kachhadiya. 35.3 Section 114 of the Customs Act, 1962 provides for penalty for attempting to export goods improperly, etc. 35.3 Section 114 of the Customs Act, 1962 provides for penalty for attempting to export goods improperly, etc. on a person who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 113, or abets the doing or omission of such an act. I find that the said acts of abetment to illegal export of diamonds on commission basis by way of supply of natural cut & polished diamonds through him to Shri Meet Kanubhai Kachhadiya, on the part of Shri Vijay Ghanshaym Gadhiya, have rendered him liable for penal action under the provisions of Section 114 of the Customs Act, 1962 read with the SEZ Act, 2005 and the rules made thereunder. On this count, I hold the levy of penalty of Rs.425,27,99,100/- (Rs. Four Hundred Twenty Five Crores Twenty Seven Lakhs Ninety Nine Thousand One Hundred only) is apt as per Section 114 of the Customs Act. As per the wordings of the provision of Section 114 of the Customs Act, 1962, I hold that the penalty equal to the value of the subject goods is to be invoked in subject matter.” 4.6 Thus, the complicity of the petitioner is established in the investigation. During the course of investigation, on scrutiny of "Keshav" mark Register resumed during search conducted at M/s. Universal Gems, Unit No. 363 364, Plot No. 239, Surat SEZ, Sachin, Surat on 12.03.2022, it is found that on Page No. 9 of the said register export wise transactions are hand written in the name of "Vijaybhai Gadhiya". In this regard, the petitioner in his statement dated 10.06.2022 admitted/confirmed that these entries are related to the supply of natural diamonds to Shri Meet Kanubhai Kachhadiya. The petitioner, in his statement dated 10.06.2022, has confessed that the entries of export of diamonds as lab grown diamonds are related to the supply of natural diamonds from Meet Kanubhai Kachhadiya, the proprietor of M/s. Universal Gems. Shri Kachhadiya, in his statement dated 28/29.05.2022 has admitted that all the diamonds are procured unauthorizedly into SEZ and the same were exported fraudulently, and the same belongs to various diamond owners/traders, who through him made exports during the period from 11.03.2021 to 18.05.2021. The petitioner was aware that Shri Meet Kachhadiya was getting commission of approximately 1% of the value of diamonds exported. The petitioner was aware that Shri Meet Kachhadiya was getting commission of approximately 1% of the value of diamonds exported. Further, the said facts are also re-confirmed by Shri Vijay Gadhiya (petitioner) in his statement dated 22.12.2023 and 04.04.2024. The total value of the diamonds exported by M/s. Universal Gems, which were supplied through the petitioner Shri Vijay Ghanshyam Gadhiya, and the total value of diamonds exported by M/s. Universal Gems through the petitioner comes to Rs. 425,27,99,100/- (Rs. Four Hundred Twenty Five Crores Twenty Seven Lakhs Ninety Nine Thousand One Hundred only). The investigation also reveals that most of the transactions are done in cash. 5. At this stage, after describing the role and the magnitude of the diamonds having been exported in false category, we may refer to the provisions of Section 114 of the Customs Act, 1962, the same read thus: “SECTION 114 : Penalty for attempt to export goods improperly, etc. 5. At this stage, after describing the role and the magnitude of the diamonds having been exported in false category, we may refer to the provisions of Section 114 of the Customs Act, 1962, the same read thus: “SECTION 114 : Penalty for attempt to export goods improperly, etc. Any person who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 113, or abets the doing or omission of such an act, shall be liable,- (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty 328 [not exceeding three times the value of the goods as declared by the exporter or the value as determined under this Act], whichever is the greater; 329 [(ii) in the case of dutiable goods, other than prohibited goods, subject to the provisions of section 114A, to a penalty not exceeding ten per cent, of the duty sought to be evaded or five thousand rupees, whichever is higher: PROVIDED that where such duty as determined under sub-section (8) of section 28 and the interest payable thereon under section 28AA is paid within thirty days from the date of communication of the order of the proper officer determining such duty, the amount of penalty liable to be paid by such person under this section shall be twenty-five per cent, of the penalty so determined;] 330 [(iii) in the case of any other goods, to a penalty not exceeding the value of the goods, as declared by the exporter or the value as determined under this Act, whichever is the greater.” 5.1 Section 114 of the Customs Act, 1962 imposes penalty for export of goods by “Any person”, who does or omits to do any act or omission would render such goods liable for confiscation under Section 113 of the Customs Act, 1962 or “abets” the doing or omission of such an Act. Section 113 of the Customs Act, 1962 refers to confiscation of goods attempted to be improperly exported. The relevant section for the instant case are Section 113 (i)(ii) which is as under: “113 Confiscation of goods attempted to be improperly exported, etc. Section 113 of the Customs Act, 1962 refers to confiscation of goods attempted to be improperly exported. The relevant section for the instant case are Section 113 (i)(ii) which is as under: “113 Confiscation of goods attempted to be improperly exported, etc. XXX XXX XXX (i) any goods entered for exportation which do not correspond in respect of value or in any material particular with the entry made under this Act or in the case of baggage with the declaration made under section 77;] (ii) any goods entered for exportation under claim for drawback which do not correspond in any material particular with any information furnished by the exporter or manufacturer under this Act in relation to the fixation of rate of drawback under section 75; 6 Thus, the petitioner was aware of all the activities of M/s Universal Gems, and he abated the export of lab grown diamonds as natural diamonds, for which they had no permission/approval under Rule 46 of the Special Economic Zone Rules, (SEZ) Rules, 2006. The petitioner facilitated the supply of such diamonds by misdeclaration. We may refer to the provisions of Section 50 of the Customs Act, 1962, which read as under: “SECTION 50 : Entry of goods for exportation CLEARANCE OF EXPORTED GOODS (1) The exporter of any goods shall make entry thereof by presenting [electronically [on the customs automated system]] to the proper officer in the case of goods to be exported in a vessel or aircraft, a shipping bill, and in the case of goods to be exported by land, a bill of export [in such form and manner as may be prescribed]: [PROVIDED that the [Principal Commissioner of Customs or Commissioner of Customs] may, in cases where it is not feasible to make entry by presenting electronically [on the customs automated system], allow an entry to be presented in any other manner.] (2) The exporter of any goods, while presenting a shipping bill or bill of export, shall [xxx] make and subscribe to a declaration as to the truth of its contents. [(3) The exporter who presents a shipping bill or bill of export under this section shall ensure the following, namely:- (a) the accuracy and completeness of the information given therein; (b) the authenticity and validity of any document supporting it; and (c) compliance with the restriction or prohibition, if any, relating to the goods under this Act or under any other law for the time being in force.]” Thus, M/s. Universal Gems violated the provisions of Section 50 of the Customs Act, 1962 read with Rule 46 of the Special Economic Zone Rules, 2006 which prescribes procedure for exports, by mis-declaring the make of the diamonds, and the petitioner facilitated the same. We do not find any infirmity or illegality in the impugned order which has been passed. The judgments, on which reliance is placed, will not come to the rescue of the petitioner as it is found that in the case of H.B.Cargo Services (supra), the High Court had examined the issue after the order was passed by the Appellate Authority in the Customs, Excise & Service Tax Appellate Tribunal (CESTAT), Bangalore, with regard to the revocation of suspension of the export license on the ground of illicit export. Whereas, in the case of Shangrila Latex (supra), the Court had examined the issue relating to the Foreign Trade (Development & Regulation) Act, 1992, and in light of the fact that there was no mens rea and the huge penalty of Rs.2.27 crores was not justified. The judgement in the case of Mukul Kumar Choudhuri (supra), deals with service jurisprudence and the penalty imposed in disciplinary proceedings. 7. On an overall analysis of the facts and the impugned order, we neither find any jurisdictional error nor any violation of principles of natural justice or violation of statutory provisions, hence we are not inclined to entertain the writ petition. The petitioner, though has an alternative remedy of filing the appeal, however chose to contest the writ petition on merits despite our suggestion, and since we were called upon to address on merits, we have passed the present order. At this stage, learned advocate Mr.Paresh Dave for the petitioner has submitted that since the petitioner has no money, he is not in a position to file the appeal. It is trite that the monetary incapacity of litigant cannot dilute the statutory provision of appeal. At this stage, learned advocate Mr.Paresh Dave for the petitioner has submitted that since the petitioner has no money, he is not in a position to file the appeal. It is trite that the monetary incapacity of litigant cannot dilute the statutory provision of appeal. 8 Hence, in wake of the facts, the present writ petition is hereby rejected.