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2024 (6) TMI 402 - AT - CustomsJurisdiction for issuance of show cause notice and Order-in-Original - levy of penalty u/s 112(a) and 112(b) of the Customs Act - confiscation of gold jewelleries - Issuance of show cause notice beyond 6 months - Non-application of the mind by the Commissioner - Onus to prove (shifting burden). Confiscation of the seized gold jewellery - HELD THAT - The issue of confiscation of gold jewellery recovered from the possession of Shri Niazi Pathan Nymatullah Khan is not a subject matter for decision in this appeal. As far as the confiscation of the gold jewellery is concerned there are no reason to indulge in the examining the legality of the same in the order of the Commissioner (Appeals) as no appeal has been filed by Shri Niazi Pathan Nymatullah Khan against the said absolute confiscation. Levy of penalty u/s 112(a) and 112(b) of the Customs Act - HELD 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 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 arising within the jurisdiction in terms of any specific or general order given by Commissioner and therefore it does not vitiate the adjudicating proceedings. It is not disputed that the Additional Commissioner who has adjudicated the case is not within administered control of the Commissioner who has the jurisdiction over the entire area where the goods were seized. Issuance of show cause notice beyond 6 months - HELD THAT - It is noticed that in terms of general relaxation for limitation due to COVID as allowed by Hon ble Supreme Court in COGNIZANCE FOR EXTENSION OF LIMITATION 2022 (1) TMI 385 - SC ORDER there is no breach of limitation of 6 months as the show cause notice could have been issued up to 28.02.2022 whereas in this case the show cause notice has been issued on 10.12.2021. Non-application of the mind by the Commissioner - HELD THAT - Because of multiple persons involved in carrying the offending goods and drawal of different 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. Onus to prove (shifting burden) - HELD THAT - In this case interception was made on specific intelligence recovery of jewellery was made from concealed compartment Shri Niazi Pathan Nymatulla Khan could not give any valid answer to the bonafide purchase or source or documents at the time of seizure and in fact gone wrong details about source therefore Section 123 was rightly invoked for seizure and the onus to prove thereafter shifted to Shri Niazi Pathan Nymatulla Khan to prove otherwise that it is neither smuggled good nor made out of smuggled gold. Further he has chosen not to come in appeal against said decision or confiscation. Therefore in the facts of the case penalty has been rightly imposed on Shri Dumpy Kumar Jain under Section 112(a) and 112(b) of the Customs Act 1962 and therefore there is no legal infirmity in the impugned order passed by Commissioner (Appeals) - Appeal dismissed.
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