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TMI Blog2024 (6) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... tice and the Order-in-Original and that there is lack of jurisdiction for issuance of show cause notice and Order-in-Original. 3. The issue in brief is that based on specific intelligence the Customs Officers of Tirupati Commissionerate intercepted one car on 18.12.2020 in which Shri Niazi Pathan Nasarulla Khan, Niazi Pathan Hyder Khan, Niazi Pathan Nymatulla Khan and Shaik Ali Share were travelling. Further, detailed examination of the vehicle resulted, inter alia, in detection of certain gold jewellery like bangles, bracelets, chains and on questioning about it's bonafide they claimed to have procured the gold jewellery at Chennai. The said gold jewellery totally weighing 324.050 gms was certified to be of 22K purity and collectively valued at Rs. 15,16,553/-. The Officers under reasonable belief that the said jewellery was made out of re-melted smuggled gold of foreign origin, placed it under seizure. Further, statements were recorded under Section 108 of Customs Act from all concerned, wherein, interalia, Shri Niazi Pathan Nymatulla Khan gave details of source of procurement at Channai and also admitted of not having any valid documents of purchase etc. However, later on 20.04 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o establish that such gold jewelleries were made out of smuggled gold and therefore were liable for confiscation. In so far as reliance being placed by the Department on the statement of the supplier is concerned, he states that Department had not asked him to disclose the source of gold from which said jewelleries were made and therefore it is the presumption of the Department that the said jewelleries were made out of smuggled gold. The Learned Counsel has also submitted that the show cause notice of seizure itself is vitiated on account of the fact that it has been issued beyond the statutory period of 6 months and that there is nothing on record to prove that the said 6 months period was extended by the Competent Authority. Further, the original order passed by the Adjudicating Authority is also without the authority of law as he is not the Jurisdictional Authority for passing such order. Further, the Order-in-Appeal also clearly suffers from non-application of mind in as much as the facts of another person, namely Shri Jacky Jain, has been relied upon while deciding the matter of penalty against the appellant. 6. On the other hand, the Learned DR has given the background of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Act: i. Kuldeep Singh & Ors Vs State of Rajasthan [2000 (5) SCC 7] ii. Kanungo & Co. Vs Collector of Customs, Calcutta [1972 (2) TMI 35 SC] iii. Om Prakash Khatri Vs Commissioner [2019 (11) TMI 796 SC] iv. Indru Ramchand Bharvani Vs Union of India [1988 (7) TMI 78 SC] v. Labhchand Dhanpat Singh Jain Vs State of Maharashtra [1974 (12) TMI 40 SC] vi. Pukhraj Vs D.R.Kohli, Collector of Central Excise, Madhya Pradesh, Vidarbha and Another [1962 (93) TMI 2 SC] vii. State of Gujarat Vs Shri Mohanlal Jitamalji Porwal and Another [1987 (3) TMI 111 SC] 8. Heard both the sides and perused the documents. 9. In this appeal, the main issue to be decided is whether the appellant is liable for penalty under Section 112(a) and 112(b) of the Customs Act or otherwise in the facts of the case. It is to be noted that penalty under Section 112 is meant for improper importation of goods by any person - (a) 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 111, or abets the doing or omission of such an act, or (b) who acquires possession of or is in any way concerned in carrying, removing, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with such goods which he has reasons to belief are liable to confiscation under Section 111. 12. Shri Dumpy Kumar Jain (aka Dumpy Jain) in his statement dated 21.04.2021 has admitted that he knew Shri Niazi Pathan Nasarullah Khan, who is father of Nymatulla Khan and he had asked him to brings gold jewellery from one M/s H K Chains, Chennai. He has also voluntarily admitted to have made certain payments to M/s HK Chains, Chennai against their invoice no. 50/20-21 dated 08.12.2020. Thus, it is obvious that Shri Dumpy Kumar Jain has not denied his association with Shri Nasarulla Khan and Shri Nymatulla Khan in relation to gold jewellery seized from the possession Shri Nymatulla Khan and in fact he has tried to claim the ownership also but further investigation conducted and especially the investigation at the end of the supplier clearly showed that Shri Dumpy Kumar Jain had tried to cover up for the seizure of jewellery made on 18.12.2020, by referring to some other unrelated transactions made with HK Chains on earlier occasions and this act makes him liable for penalty under Section 112, in as much as he abated with Nasarulla Khan in relation to the seized gold jewellery, and indir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot been challenged by Shri Niazi Pathan Nymatulla Khan and therefore any case law which has bearing on that cannot be decided in this appeal. The limited issue which is required to be decided in this case is whether he has either colluded with Shri Niazi Pathan Nymatulla Khan, directly or indirectly, in relation to the said jewellery or has in any manner dealt with that or otherwise. In the facts of the case, by claiming to be the owner of the part of said goods, which ultimately he could not established, it is a clear case of abatement when the goods were already held to be liable for confiscation. It is a case where he actually tried to cover the offending seized goods by claiming it as some other legitmate jewellery items, which however could not stand to test in view of various contradictions as well as admitted facts by Shri Niazi Pathan Nymatulla Khan, Shri Niazi Pathan Nasarullah Khan and so called supplier. The retraction of statement by Nymatullah khan also does not help him because of the reasons given in detail by Original Adjudicating Authority. 17. A great deal of argument has been made by the Learned Advocate of the appellants that Section 123 is not invokable in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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