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2022 (6) TMI 628 - HC - CustomsSmuggling - Baggage Rules - Bonafide baggage or not - Gold Jewellery - Liquor - whether the respective petitioners were required to declare jewellery items worn by them on their person after disembarking from the aircraft or were entitled to walk through green channel without making any declaration before the proper officer of the Customs Department? - levy of penalty - HELD THAT - As per Section 80 of the Customs Act, 1962, a proper officer, at the request of a passenger, can detain any article in a baggage of a passenger which are either dutiable or the import of which is prohibited, in respect of which, a true declaration has been made under Section 77 for being returned on his leaving India and if for any reason, the passenger is unable to collect the article at the time of leaving India, the article may be returned to him through any other passenger authorised by him who would be leaving India or as cargo consigned to him - jewellery items are not articles of personal effect. Jewellery are any other articles other than the articles of personal effect . Therefore, the petitioners being tourist within the meaning of Rule 2(1)(v) of the said Rules are governed by Sub Clause (b) of the Rule 3 of Baggage Rules, 2016. The said Rule read with Annexure I makes it clear that gold or silver ornaments upto a value of Rs.50,000/- worn in person or carried on person are only freely importable. Import of gold or silver ornaments exceeding Rs.50,000/- cannot be considered as part of bonafide baggage of tourist travelling to India. The petitioner should have paid customs duty, if they intended to deliver, sell them or gift them to a person in India. On the other hand, if they intended to retain them, they should have requested the proper officer to detain them for being returned to them. The reasoning of the learned single judge of the Kerala High Court inVIGNESWARAN SETHURAMAN VERSUS UNION OF INDIA 2014 (12) TMI 268 - KERALA HIGH COURT that The Customs Act, 1962 and the Baggage Rules, 1998 do not provide sufficient warning to foreign tourists entering India that wearing a gold chain is prohibited. The Act and the Rules do not even remotely indicate that a foreign tourist entering India cannot wear a gold chain on his person, in other words, foreign tourists entering India are in a boundless sea of uncertainty as to whether it is prohibited or not. As the Customs Act, 1962 and the rules framed thereunder contemplate confiscation and levy of penalty as also prosecution, the State has a duty to specify with a degree of certainty as to what is prohibited and what is not, without leaving it to the foreign tourist to guess what is prohibited and what is not . cannot be accepted. Further, one fails to understand, petitioners who claim to be pilgrims visiting an alien country would wear costly jewellery even if it be their customs - the fact that the petitioners also purchased 112 bottles liquor beyond the permissible limits and attempted to walk though the green channel without making declaration also shows that the visit to India by the petitioners were not purely as pilgrimage alone - the conduct of the petitioners attempting to walk through the green channel without proper declaration had raised serious doubts and thus proceedings initiated against the petitioners are in accordance with the provisions of the Customs Act, 1962. Petition dismissed.
Issues Involved:
1. Requirement of declaration of jewelry items worn by the petitioners upon disembarking. 2. Applicability of penal provisions under the Customs Act, 1962 for non-declaration. 3. Validity of confiscation and penalties imposed by the Customs authorities. 4. Applicability of the Baggage Rules, 2016 and relevant exemptions. 5. Relevance of precedents from other High Courts and the Supreme Court. Detailed Analysis: 1. Requirement of Declaration of Jewelry Items: The court examined whether the petitioners were required to declare jewelry items worn by them after disembarking from the aircraft. As per Section 77 of the Customs Act, 1962, an owner of any baggage must make a declaration of its contents to the proper officer for the purpose of clearing it. Section 79 of the Customs Act, 1962, exempts bonafide baggage from duty, but the petitioners' jewelry exceeded the permissible value of Rs.50,000 as per the Baggage Rules, 2016. Therefore, the petitioners were required to make a proper declaration. 2. Applicability of Penal Provisions: The court reviewed whether the petitioners' actions attracted penal provisions under the Customs Act, 1962. The court found that the petitioners did not declare the jewelry and attempted to walk through the green channel, which raised suspicions of smuggling. As per the Customs Act, 1962, and the Baggage Rules, 2016, non-declaration of items exceeding the permissible limit attracts penalties and confiscation. 3. Validity of Confiscation and Penalties: The court upheld the confiscation and penalties imposed by the Customs authorities. The initial order by the third respondent imposed redemption fines and penalties under Sections 112(a) and 114 AA of the Customs Act, 1962. The Appellate Commissioner had set aside these penalties, but the first respondent reversed this decision, affirming the confiscation and penalties. The court found no material irregularity in the decision-making process and upheld the impugned order. 4. Applicability of the Baggage Rules, 2016 and Relevant Exemptions: The court analyzed the Baggage Rules, 2016, which replaced the 1998 Rules. Rule 3 of the Baggage Rules, 2016, allows duty-free clearance of articles in bonafide baggage up to a value of Rs.50,000. The petitioners' jewelry exceeded this limit, necessitating a declaration. The court also referred to Rule 3(1)(h) of the Foreign Trade (Exemption from Application of Rules in Certain Cases) Order, 2017, which exempts articles in passenger baggage to the extent admissible under the Baggage Rules, 2016. 5. Relevance of Precedents from Other High Courts and the Supreme Court: The petitioners relied on the decision of the Kerala High Court in Vigneswaran Sethuraman vs. Union of India, which held that foreign tourists were not required to declare jewelry worn on their person. However, the court found that this decision was rendered in the context of the Baggage Rules, 1998, and was not applicable to the present case governed by the Baggage Rules, 2016. The court also noted that the decision of the Supreme Court in Directorate of Revenue Intelligence vs. Pushpa Lekhumal Tolani was confined to the facts of that case and did not apply to the present case. Conclusion: The court dismissed the writ petition, upholding the impugned order of confiscation and penalties. The court found that the petitioners' actions violated the Customs Act, 1962, and the Baggage Rules, 2016, and there were no grounds to interfere with the decision-making process of the first respondent. The petitioners were required to make a proper declaration of their jewelry, and their failure to do so attracted the penalties imposed by the Customs authorities.
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