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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 ..... 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 indirectly with Nymatulla Khan by trying to claim the same as his legitimate jewellery. The seized gold jewellery were liable to confiscation and actually confiscated, against which no appeal has been filed by Shri Niazi Pathan Nymatulla Khan. Jurisdiction for issuance of show cause notice and Order-in-Original - HELD THAT:- The matter has already been dealt with by the Original Authority and there are no reason to interfere with the same in as much as the Additional Commissioner work under who is having jurisdiction over the entire geographical area and he can adjudicate any matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Appellant. Shri A Rangadham, Authorised Representative for the Respondent. ORDER Shri Dumpy Kumar Jain, Proprietor of M/s Sri Shanti Jewellers, Kadapa (herein after referred to as appellant) was, interalia, issued show cause notice for imposition of penalty under Section 112(a) and 112(b) of the Customs Act. On adjudication, the Adjudicating Authority, interalia, held the gold jewellery collectively valued at Rs. 15,16,553/- seized on 18/19.12.2020 from the possession of one Shri Niazi Pathan Nymatulla Khan liable for absolute confiscation. Thereafter, the Adjudicating Authority imposed a penalty of Rs. 50,000/- on Shri Dumpy Kumar Jain. The appellants are in appeal against this imposition of penalty. 2. The main ground of appeal pleaded by the appellants are that Order of the Appellate Authority has crossed the boundaries of the show cause notice 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 Kha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat during the 4 months gap between the date of seizure and date of retraction, none of the claimants made any effort to produce the documents and payments details till retraction was made by the Niazi Pathan Nymatullah Khan and that the claimant Shri Dumpy Kumar Jain failed to produce any corroborative evidence to the effect that they were the real owners of the seized gold jewellery weighing 53.280 out of 324.050 gms. 5. Learned Counsel for the appellant submits that admittedly the seized gold jewelleries were of 22K and there was a payment proof and on both these grounds no dispute has been made by the Department and therefore such jewelleries were not liable for seizure or subsequent confiscation. He also states that the seizure itself is vitiated because there was no reasonable belief and the Department ought to have carried out investigation to 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 therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty in view of his role. 7. He further points out that the show cause notice was issued to Niazi Pathan Nymatulla Khan for confiscating the gold jewelleries and not to Shri Dumpy Kumar Jain whose claim to ownership of part of seized jewellery was rejected by Adjudicating Authority on valid grounds and therefore since the Niazi Pathan Nymatulla Khan has not come in appeal against the said order, the order of the Commissioner (Appeals) to that extent is final and the only issue left is to decide whether the Shri Dumpy Kumar Jain is liable for penalty under Section 112(a) and 112(b) in the facts of the case or otherwise. He has relied on various case laws in support that Section 123 was rightly invoked in the facts of the case and the totality of evidence has to be taken into account to arrive at reasonable belief for invoking Section 123 of Customs 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Niazi Pathan Nymatullah Khan against the said absolute confiscation. 11. A plain reading of Section 112(a) and 112(b) would indicate that in order to bring somebody within the purview of Section 112, he has to do something or omit to do something so as to make such goods liable to confiscation under Section 111 or abates in the doing or omission of such an act. Similarly, in terms of Section 112(b), he has to either acquire possession of or be concerned in any manner dealing with any goods which he knows or has reason to belief are liable to confiscation under Section 111. This section is clearly meant for person who has actively abated an act of omission or commission either directly or by way of abatement in certain activities which makes the goods liable for confiscation under Section 111 or has in any another dealt 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erent panchanamas, facts applicable to Shri Jacky Jain has been analysed as the facts applicable to Shri Dumpy Kumar Jain by the Adjudicator. However, that alone will not make it a case of non-application of mind if the entire Order-in-Original and Order-in-Appeal are read holistically bringing out the culpability of Shri Dumpy Kumar Jain vis-a-vis the offending goods, which were liable for confiscation and were actually confiscated by the Adjudicator. 16. Learned Counsel for the appellant has relied on various case laws in support of his arguments that gold jewellery are neither smuggled goods nor prohibited goods and therefore they were not liable for confiscation either under Section 111(d) or under Section 111(o). I have already discussed, supra, that the issue of absolute confiscation of the gold jewellery has not 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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