2008 (3) TMI 345 - HC - Customs

Whether a non-resident Indian on transfer of his residence to India can be permitted to bring more than one firearm under the provisions of the Arms Act or the Rules framed thereunder or the existing Baggage Rules. Held that - Rule 8 stipulates that a person who is transferring his residence to India shall be allowed free of duty clearance of certain articles in his bona fide baggage to the extent mentioned in Column 1 of Appendix F subject to the conditions mentioned in the corresponding entry in Column 2 of Appendix F . As crystal clear from the aforesaid provisions that only upto one firearm can be cleared on production of a valid licence under the Arms Act and on payment of the appropriate duty on the said firearm, in view of exclusion of firearms under Rule 8 read with Appendix F of the Baggage Rules and para 2 of the notification No. 137/90-Cus. dated 20th March, 1990. The release of this one firearm is by virtue of the exercise of powers by the Central Government, as vested in the Central Government under Section 11 of the Arms Act, and the Central Government having by circular No. 63/95-Cus. dated 7-6-1995 permitted the release of one firearm under the Transfer of Residence Form Revision to the person concerned. The learned Single Judge has correctly dismissed the writ petition as being without merit, and permitting the appellant to take back the detained firearms. It was further rightly ordered by the learned Single Judge that on the appellant s exercising such an option, the said firearms would be released to him as and when he chose to go abroad with the condition that he would not be permitted to bring the same into India. Appeal dismissed.

Summary

Issues Involved:
1. Whether a non-resident Indian on transfer of residence to India can bring more than one firearm under the provisions of the Arms Act, the Rules framed thereunder, or the existing Baggage Rules.

Issue-wise Detailed Analysis:

Background Facts:
The appellant, an Indian citizen residing in the USA, returned to India for good due to his wife's ill health. He held three valid gun licenses in India and corresponding licenses in the USA. Upon arrival in India, customs allowed him to bring only one firearm under the Transfer of Residence Rules and detained the other two, requiring import licenses from the Director General of Foreign Trade (DGFT).

Appellant's Argument:
The appellant contended that a conjoint reading of the Arms Act, the rules framed thereunder, and the Baggage Rules allowed him to bring up to three licensed firearms into India. He argued that Rule 8 of the Baggage Rules, 1998, which the respondents relied upon, was misinterpreted.

Respondents' Argument:
The respondents argued that the import of firearms is governed by the Export and Import Policy (Exim Policy) and not solely by the Arms Act. Under Sections 3 and 5 of the Foreign Trade (Development and Regulation) Act, 1992, the Central Government can regulate the import of goods, including firearms. The Exim Policy prohibits the import of firearms except against an import license issued by DGFT to renowned shooters or rifle clubs.

Relevant Provisions:
- Arms Act, 1959: Section 3 mandates a license for possession of firearms, allowing up to three firearms. Section 10 prohibits bringing firearms into India without a valid license. Section 11 empowers the Central Government to prohibit import/export of arms.
- Customs Act, 1962: Section 79 allows the Central Government to make rules for duty-free baggage. Rule 8 of the Baggage Rules, 1998, permits duty-free clearance of certain articles but excludes firearms (Annexure-1 of Appendix 'F').
- Exim Policy: Import of firearms is restricted and only permitted against a license by DGFT for renowned shooters or rifle clubs.

Judgment Analysis:
1. Arms Act Interpretation:
The Arms Act allows possession of up to three firearms with valid licenses but does not address the import of firearms, which is governed by the Exim Policy.

2. Customs Act and Baggage Rules:
Rule 8 of the Baggage Rules permits duty-free clearance of personal and household articles but excludes firearms. Thus, firearms are dutiable and cannot be imported as part of baggage without duty.

3. Exim Policy:
The Exim Policy restricts the import of firearms, permitting it only against a license for renowned shooters or rifle clubs. This policy overrides the provisions of the Arms Act regarding import.

4. Circulars and Notifications:
The Ministry of Finance's circulars allow the import of one firearm under the Transfer of Residence Rules, subject to conditions. This policy has been consistent since 1978, reiterated in 1989 and 1995.

Conclusion:
The court upheld the learned Single Judge's decision that only one firearm could be imported under the Transfer of Residence Rules, subject to conditions. The appellant's contention was dismissed, affirming that the import of more than one firearm is not permissible under the existing legal framework. The appeal was dismissed, and the appellant was allowed to take back the detained firearms upon leaving India, ensuring they are not brought back into the country.