[Cites 30, Cited by 0]
Gujarat High Court
Vishal Dhirubhai Gabani vs Additional Commissioner Of Customs ... on 16 April, 2026
Author: A.S. Supehia
Bench: A.S. Supehia
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3265 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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Approved for Reporting Yes No
√
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VISHAL DHIRUBHAI GABANI
Versus
ADDITIONAL COMMISSIONER OF CUSTOMS SURAT
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Appearance:
MR. HARDIK V VORA(7123) for the Petitioner(s) No. 1
SHASHVATA U SHUKLA, SENIOR STANDING COUNSEL for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 16/04/2026
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1 In the present writ petition, the petitioner has assailed
the Order-in-Original dated 06.11.2025 imposing penalty of
Rs.4,46,47,485/- by invoking the provisions of Section 112(a)
and Section 112(b) of the Customs Act, 1962 (for short "the
Act").
2 At the outset, on the objections raised by learned Senior
Standing Counsel Mr.Shashvata Shukla on the maintainability
of the petition, as the petitioner is having an alternative
remedy, we have called upon learned advocate Mr.Hardik
Vora for the petitioner to satisfy this Court in this regard. In
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response to this, he has submitted that since the petitioner is
challenging the impugned order as the same is passed de
hors the statutory provisions, the writ petition would be
maintainable.
3 The brief facts leading to filing of the present writ
petition are as under:
3.1 The petitioner, who is dealing in the business of
embroidery machines was subjected to investigation along
with other persons for smuggling of gold in the form of paste.
3.2 On the intervening night of 28/29.04.2023, the Special
Operation Group (SOG), Surat Police intercepted a car
bearing registration No. GJ-03-BA-5838 near S.K.Nagar
Chokdi, Surat. There were two passengers who had arrived
from Surat International Airport in Air India Express Flight
No. IX-172 dated 28.04.2023 and upon interception and
personal search conducted by the SOG Police, gold in paste
form weighing 7158 grams in total, comprising 3582 grams
was recovered from one Shri Fenil Rajeshbhai Mavani and
3576 grams was recovered from Shri Nirav Ramnikbhai
Davariya who had arrived from Sharjah.
3.3 There were other two persons who were the occupants
of the vehicle from whom nothing was recovered. Upon
completion of the panchnama, the said four individuals were
arrested. After the production of such individuals before the
Chief Judicial Magistrate, Surat, the Directorate of Revenue
Intelligence (for short "the DRI"), Regional Unit, Surat, took
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them into custody. The statement of Shri Fenil Rajeshbhai
Mavani was recorded under Section 108 of the Act, wherein,
he had narrated the modus of smuggling of goods which were
handed over to them in Dubai by one Shri Umesh Rameshbhai
Bhikadiya. Similar statement was given by Shri Nirav
Ramnikbhai Davariya who was named by Shri Fenil Mavani.
3.4 Further statements were recorded of the persons who
were involved. As investigation gradually proceeded, the
name of the petitioner was unearthed during the
investigation, and thereafter, he was arrested and his custody
was taken by the Officers of the D.R.I, Regional Unit, Surat.
3.5 Ultimately, the petitioner was issued a show-cause
notice along with the other persons who were involved in
smuggling of the goods under Section 124 of the Act, dated
22.05.2024. The show-cause notice mentions roles of each of
the individuals, including the petitioner. The petitioner
submitted detailed reply along with the supporting documents
on 03.07.2025. Thereafter, the respondent has passed the
impugned Order-in-Original dated 06.11.2025 imposing a
penalty of Rs.4,46,47,485/- under the provisions of Section
112 of the Act.
4 Learned advocate Mr.Hardik Vora, has confined his
argument to the applicability of statutory provisions of the
Customs Act, more particularly, Section 112 of the Act.
4.1 It is submitted that the provisions of Section 112 of the
Act, refers to Clauses (a) and (b) relating to the improper
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importation of goods and further below Clause(b) there are
five sub-clauses and since the petitioner has been imposed the
penalty under Clause(i), the competent authority was required
to issue the show-cause notice inviting the attention of the
petitioner to the imposition of penalty under Sub-clause(b) of
Section 112 of the Act and since the same is not done, it runs
contrary to the decision of the Supreme Court in the case of
Amrit Foods vs. Commissioner of Central Excise, U.P., [2006]
taxmann.com 857 (SC).
4.2 Further, it is submitted that the show-cause notice does
not refer to either Clause 112(a) or (b), but it refers to both
the clauses which is impermissible. In support of his
submissions, reliance is placed upon on the Single Judge
judgement of High Court of Calcutta in the case of Gopal Saha
vs. Union of India., [2016] 69 taxmann.com 325 (Calcutta).
4.3 Mr.Hardik Vora, learned advocate has submitted that, in
fact, as per sub-clause-(ii), the goods referred in the said
clause are a dutiable goods and hence the penalty ought to
have been imposed under sub-clause(ii) since the gold falls in
such category. Thus, it is urged that the impugned Order-in-
Original is required to be quashed and set aside.
5 In response to the aforesaid submissions, learned Senior
Standing Counsel Mr.Shukla has submitted that, in fact, the
act i.e. smuggling of gold in paste form by the petitioner falls
under both the provisions of Clauses (a) and (b) of Section 112
of the Act. It is submitted that while issuing show-cause
notice, the competent authority had specifically highlighted
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the act of the petitioner and the nature of its contravention
and hence, the petitioner was called upon to submit his
explanation for the violation of the provisions of the Act.
5.1 It is submitted that in the reply by the petitioner to the
show-cause notice, no contention was raised by him alleging
any violation of the provisions of the Act. While referring to
the Division Bench judgement of Delhi High Court in the case
of AVI Steel Traders vs. Commissioner of Central Excise.,
2010 (260) E.L.T. 43 (Delhi.), it is submitted that the Delhi
High Court after considering the judgement of the Supreme
Court in the case of Amrit Foods (supra), has held that in
once the person is put to notice to the exact nature of
contravention, it is not necessary to issue show-cause notice
pointing out the precise clause under which the penalty is
required to be imposed.
5.2 Learned Senior Standing Counsel Mr.Shukla, also placed
reliance on the Division Bench judgement of Telangana High
Court in the case of Shaikh Mohammad Sadiq vs.
Commissioner of Customs., 2024 SCC Online TS 4565, and
submitted that not pointing of relevant provisions in the show-
cause notice would not make the order illegal and since the
petitioner has an alternative remedy of filing an appeal, the
writ petition may not be entertained.
6 We have heard learned advocates appearing for the
respective parties at length. The entire case of the petitioner
hinges on the provisions of Section 112 of the Act, more
particularly clauses (a) and (b) and sub-clause (I) of Section
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112 of the Act. The same is incorporated as under:
"112. Penalty for improper importation of goods, etc.
- 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, depositing, harbouring, keeping, concealing,
selling or purchasing, or in any other manner dealing with any
goods which he knows or has reason to believe are liable to
confiscation under section 111, shall be liable,
xxx xx xx
(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 [not exceeding the value of the goods or five thousand
rupees] [Substituted by Act 14 of 2001, Section 107, for certain
words (w.e.f. 11.5.2001). ], whichever is the greater;"
(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."
6.1 Keeping in mind the aforementioned provision, we may,
at this stage, refer to the contents of the show-cause notice
which has been issued to the petitioner along with various
other persons who are found to have indulged in smuggling of
gold in paste form. This appears to be a wide spread racket of
smuggling the gold in India. The relevant role of the petitioner
in the impugned show-cause notice issued under Section 124
of the Act dated 22.05.2024 is as under:
"49.6 Shri Vishal Dhirubhai Gabani:
It appears that Shri Vishal Dhirubhai Gabani was an active
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syndicate member of group involved in smuggling of gold paste
through Surat International airport and arranged around 2,75,000
Dirhams in UAE in April-23 to buy the gold for Shri Baldev
Manshukbhai Sakhereliya. He was well aware that smuggling of
gold from foreign countries without declaring before Customs
Airport authorities and dealing with such goods is an offence under
Customs Act, 1962 It appears that he was having culpable mental
state and the acts of omission and commission on his part in
relation to the smuggling of gold which is liable for confiscation
Section 111(d), 111(i) and 111(j) have rendered himself liable for
penalty under Section 112 (a) & (b) of the Customs Act, 1962."
6.2 From the contents of the show-cause notice, it is evident
that the petitioner has been informed of the exact
contravention and his role in smuggling of gold from foreign
countries without declaring before the Customs Authorities.
The competent authority has specifically, after referring to his
role, has mentioned about the provisions of Section 112 (a)
and (b) of the Act. The petitioner accordingly filed reply to the
show-cause notice.
6.3 After considering the reply of the petitioner, the
Additional Commissioner of Customs passed the Order-in-
Original dated 06.11.2025. The relevant observations and
findings by the Tribunal are as under:
"54.28.6 Shri Vishal Dhirubhai Gabani had played a vital role in the
smuggling gold in gold paste through Surat International Airport
as he is engaged in buying Gold from UAE and smuggle the same
into India without declaring the same before the Customs
Authorities and selling smuggled Gold in India on a commission of
3-4% of the amount invested/provided by him for purchase of gold
in Dubai. He accepted the offer of Shri Baldev Mansukhbhai
Skhereliya and arranged around 2,75,000 Dirhams in UAE in April-
23 to buy the gold for Shri Baldev Mansukhbhai Sakhereliya. He
was well aware about the fact that bringing gold from foreign
countries without declaring before Customs Airport authorities and
dealing with such goods is an offence under Customs Act, 1962.
Thus, it is evident that Shri Vishal Dhirubhai Gabani has indulged
himself in aiding, abetting and consciously concerned himself with
smuggling of Gold in Paste form through Surat International
Airport, thereby rendering himself liable for penalty under Section
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112 (a) & (b) of the Customs Act, 1962. As he aided and abetted in
smuggling of the said gold by funding the syndicate for commission
to buy gold in UAE, I hold the levy of penalty of Rs.4,46,47,485/-
(Rupees Four Crore Forty Six Lakh Forty Seven Thousand Four
Hundred and Eighty Five only) (market value) is apt as per Section
112 of the Customs Act, 1962. As per the wordings of the provision
of Section 112 of the Customs Act, 1962, I hold that the penalty at
higher side which is equal to the value of the subject goods is to be
invoked in subject matter."
6.4 We may, at the outset, first deal with the contentions
raised by the petitioner relating to Clauses (a) and (b)
prescribed under Section 112 of the Act. On a bare perusal of
the alleged contravention, we find that the role of the
petitioner in smuggling the gold would be covered in both the
Clauses of Section 112 of the Act i.e. (a) and (b). The word
"or" implies that a person can be liable under either clause
depending on his/her role. So far as Section 112(a) of the Act
is concerned there are two classes of persons liable for
penalty there under, one a person who does or omits to do any
act which renders the goods liable for confiscation and the
other is a person who abets the doing of any act or omission
to do any act which renders the goods liable for confiscation
under Section 111 of the Act. It thus attempts to bring in
persons who are not directly concerned but even indirectly
concerned with the illicit importation within the scope of
penal provision of Section 112 (a) of the Act, whereas Section
112(b) of the Act provides for imposition of penalty when any
person acquires possession of the offending goods or is
concerned with carrying, depositing, concealing, selling or
dealing with goods which he knows or has reason to believe
are liable to confiscation under Section 111 of the Act. This
section brings in the element of knowledge in the act of illicit
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acts relating to importation of goods. Thus, if a person
imports goods illegally(active role), he/she falls under 112(a)
of the Act. If a person subsequently buys or
handles/deals(passive role) with those illegally imported
goods, they fall under 112(b) of the Act. The petitioner has
been found to be indulged with other persons for getting the
gold smuggled in the country in the paste form and also in
dealing with the same. This is done without declaring to the
Customs Authority. Thus, the role of the petitioner, which is
unearthed in the investigation, indubitably will attract both
the clauses (a) and (b) of Section 112 of the Act.
6.5. It is contended before us that the case of the petitioner
will fall under sub-clause(ii) instead of sub-clause(i) since the
goods(gold) falls under the category of "dutiable goods" and
not in "prohibited goods", and accordingly, the penalty was
required to be imposed. The petitioner is involved in
smuggling of gold in paste form. The Division Bench of this
Court in the case of Abdul Hussain Saifuddin Hamid vs. State
of Gujarat, 2021 (1) G.L.H. 184, after comprehensive
examination of the provisions of the Customs Act apro pos
smuggling of gold has held thus:
"51 No sooner goods are brought from outside, into the
territorial waters of the country, they become imported goods.
At this juncture, it has to be seen, as to whether, such goods are
legally or illegally imported, whether they fall within Section 11
of the Customs Act, 1962 , which defines, an illegal import as,
import of any goods in contravention of the provisions of the
Customs Act, 1962 or any other law for the time being in force.
Goods imported, contrary to the enumerated subject matters in
chapters IV and IV-A of the Customs Act, 1962 , which deal with
prohibition on importation and exportation goods and detection
of illegally imported goods prevention and disposal thereof,
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more fully described in Sections 11 and 11A of the Act, are also
to be treated as prohibited. Goods imported from outside of the
territory waters of the country, against any prohibition or
restriction under the Customs Act, 1962 or any other law, time
being in force, are to be treated as prohibited goods.
52 There is one thing to state that gold is not one of the
enumerated prohibited goods and another, to state that goods
are not permitted to be brought into the country, by smuggling,
which, means any act or omission which would render such
goods liable to confiscation under section 111 or section 113.
There may not be total prohibition for import of goods, but if
import is not done lawfully, in other words against any
prohibition or restriction, which are inbuilt in the Customs Act,
1962 or any other law for the time being in force, then such
goods should fall within the definition of Section 2(33) of the
Act.
53 A conjoint reading Sections 2(33), 11 or 11A of the Act and
other provisions in the Customs Act, 1962 , and any other law,
for the time being in force, would also make it clear that
importation of goods, defined as illegal or prohibited or without
complying with the conditions, or in violation of statutory
provisions in the Customs Act, 1962 or any other law for the
time being in force and in all cases, whether there is either total
prohibition or restriction, in the light of the judgment of the
Supreme Court in Om Prakash Bhatia's case, such goods should
fall within the definition of Prohibited goods. When import is in
contravention of statutory provisions, in terms of Sections 11 or
11A of the Customs Act, 1962 or any other law, for the time
being in force and when such goods squarely fall within the
definition 'illegal import', or the other provisions in the statute,
dealing with prohibition/restriction, the same are to held as,
"prohibited goods" and liable for confiscation.
54 Under Section 123 of the Customs Act, 1962 , if the importer
fails to discharge the burden that the goods seized from him,
were not smuggled, then there is a strong reason for the proper
officer to seize such goods. Smuggling is nothing but importing
goods clandestinely, without payment of duty and such goods
would squarely fall within the definition of 'Prohibited goods',
under Section 2(33) of the Act.
55 The expression, 'subject to the prohibition under the
Customs Act, 1962 or any other law for the time being in force,
in Section 2(33) of the Customs Act, has to be read and
understood, in the light of what is stated in the entirety of the
Act and other laws. Production of legal and valid documents for
import, along with payment of duty, determined on the goods
imported, are certainly conditions to be satisfied by an
importer. If the conditions for import are not complied with,
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then such goods, cannot be permitted to be imported and thus,
to be treated as prohibited from being imported.
56 In Om Prakash Bhatia v. Commissioner of Customs, Delhi
reported in 2003 (155) ELT 423 (SC), the Supreme Court held
that if there is intentional over-invoicing of the goods imported,
then such goods imported, fall under the category, 'prohibited
goods', as per Section 2(33) of the Customs Act, 1962 .
Smuggling under the Customs Act, 1962 , in relation to any
goods, means any act or omission which will render such goods
liable to confiscation, under section 111 or section 113 of the
Act and therefore, those goods, would also fall under the
definition of prohibited goods, in terms of Section 2(33) of the
Customs Act, 1962.
57 If there is a fraudulent evasion of the restrictions imposed,
under the Customs Act, 1962 or any other law for the time
being in force, then import of gold, in contravention of the
above, is prohibited. For prohibitions and restrictions, Customs
Act, 1962 , provides for machinery, by means of search, seizure,
confiscation and penalties. Act also provides for detection,
prevention and punishment for evasion of duty.
58 The expression, 'subject to prohibition in the Act and any
other the law for the time being in force.' in Section 2(33) of the
Customs Act, has wide cannotation and meaning, and it should
be interpreted, in the context of the scheme of the Act, and not
to be confined to a narrow meaning that gold is not an
enumerated prohibited good to be imported into the country. If
such narrow construction and meaning have to be given, then
the object of the Customs Act, 1962 , would be defeated.
59 The Provisions in the Customs Act, 1962 , dealing with
prohibition/restriction or any other law for the time in force,
have to be read into Section 2(33) of the Act. Section 11A of the
Act, as to what is 'illegal import', cannot be thrown to winds,
while interpreting, 'what is prohibited goods', in terms of
Section 2(33) of the Customs Act, 1962 . To add, while
interpreting Section 2(33) of the Customs Act, 1962 , as to what
is prohibition, imposed in other laws, for the time being in
force, one cannot ignore, the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974, rules framed
by way of delegated legislation, like the Baggage Rules, 1998,
framed in exercise of the powers conferred under Section 79 of
the Customs Act, 1962 or for the matter, Section 77 of the
Customs Act, 1962 , which mandates, the owner of the baggage
for the purpose of clearing the goods, to make a declaration of
the contents of the baggage to the proper office and also the
customs Notification No.3/2012, dated 16.01.2012, that only
passengers of Indian origin or a passenger in possession of a
valid passport, issued under the Passport Act, 1967, who have
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stayed abroad for six months and above alone are eligible to
import gold of foreign origin and clear the same on payment of
customs duty, at the rate prescribed.
60 Thus, in the overall view of the matter, we are convinced
that no case is made out by the writ-applicant for grant of any
relief as prayed for in this writ-application."
6.6 It is held that smuggling under the provisions of the Act,
in relation to any goods, means any act or omission which will
render such goods liable to confiscation, under section 111 or
section 113 of the Act and therefore, those goods, would also
fall under the definition of prohibited goods, in terms of
Section 2(33) of the Act. In the present case, the gold is
sought to be smuggled in the paste form concealed in jeans,
shoes and underwear worn by the other persons and the
petitioner has played a very vital role to get it through the
Surat International Airport and has also aided other persons
and also dealt with it, hence the imposition of penalty as
prescribed under sub-clause(i) to Section 112 of the Act
cannot be said to be unwarranted.
6.7 Finally, we may refer to the decision of the Supreme
Court in the case of Amrit Foods (supra), on which reliance
is placed by the petitioner, more particularly paragraph No.5,
which is as under:
"5 The Revenue has preferred an appeal from the order of the
Tribunal setting aside the imposition of penalty under Rule 173Q of
the Central Excise Rules, 1944. The Tribunal has set aside the
order of the Commissioner on the ground that neither the show
cause notice nor the order of the Commissioner specified which
particular clause of Rule 173Q had been allegedly contravened by
the appellant. We are of the view that the finding of the Tribunal is
correct. Rule 173Q contains six clauses the contents of which are
not same. It was, therefore, necessary for the assessee to be put on
notice as to the exact nature of contravention for which the
assessee was liable under the provisions of the 173Q. This not
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having been done the Tribunal's finding cannot be faulted. The
appeal is, accordingly, dismissed with no order as to costs."
6.8 The Supreme Court in reference to Rule 173Q of the
Central Excise Rules, 1944, appears to upheld the decision of
the Tribunal by recording that since Rule 173Q contains six
clauses the contents of which are not same, the assessee was
required to put to notice on the exact nature of contravention
for which the assessee was liable. In the instant case, while
issuing show-cause notice, the respondent authorities have
exactly pointed out the nature of contravention by the
petitioner in smuggling the goods and hence the petitioner
was made aware of the same which he responded by filing a
reply and hence we do not find that the show-cause notice
becomes vulnerable on the aforesaid observations made by
the Supreme Court in the instant case.
6.9 In the decision of the Calcutta High Court in the case of
Gopal Saha (supra) we find that the same would not apply to
the facts of the present case as the act of the petitioner would
fall in both the clauses (a) and (b) of Section 112 of the Act,
which the petitioner was called upon to show cause. The
Telangana High Court in the case of Shaikh Mohammad
Sadiq (supra), has held as under:
"10. In the instant cases, despite repeated query, learned counsel
for the petitioners could not point out any lack of jurisdiction of the
competent authority except saying that the relevant provisions
under which relevant sub-clauses under which penalties have been
imposed are not mentioned. It is not the case of the petitioners as
argued that the penalties were imposed without authority and
competence. The only breach highlighted is non-quoting of relevant
provisions. This is trite that non-quoting or wrong quoting of
provisions will not make the order illegal. If the authority is
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otherwise having competence, said infirmity will not cause any
dent to the impugned orders. At the cost of repetition, it is
mentioned no jurisdictional error which goes to the root of the
matter is pointed out. For the breach of principles of natural
Justice, the petitioners can avail the statutory alternative remedy.
The requirement of statutory pre-deposit cannot be a ground to
short-circuit the statutory remedy."
6.10 The Telangana High Court while dealing with the
provisions of Section 112(a) and (b) of the Act, on an analogus
issue has held that non quoting or wrong quoting of provisions
will not make the order illegal, more particularly if the
authority otherwise having competence, said infirmity, will not
cause any dent to the impugned orders.
6.11 In the instant case as mentioned hereinabove, the
competent authority has in fact, quoted the provisions of
Section 112(a) and (b) of the Act in the show-cause notice as
well as in the Order-in-Original and accordingly, after
apprising the facts and the role of the petitioner has precisely
imposed penalty by invoking sub-clause(i) to section 112 of
the Act. We may reiterate that the learned advocate appearing
for the petitioner was asked to avail the remedy of filing an
appeal, however, he has insisted for reasoned order, hence we
have done so.
7 Accordingly, the writ petition fails and is hereby
dismissed.
(A. S. SUPEHIA, J)
(PRANAV TRIVEDI,J)
BIMAL /38
