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2025 (1) TMI 1467 - HC - CustomsSeeking issuance of an appropriate writ for directing the Respondents to release and return the seized gold ornaments belonging to the Petitioner - Smuggling of Gold - prohibited goods or not - HELD THAT - The Supreme Court in Pushpa Lekhumal Tolani 2017 (8) TMI 684 - SUPREME COURT has considered whether jewellery being carried by a tourist as part of her baggage would qualify as smuggling under the Act read with the Baggage Rules 1998 that was in force during the relevant period. The Supreme Court clearly holds that it is not permissible to completely exclude jewellery from the ambit of personal effects . Accordingly the Court declared that the seized jewellery items therein were the bona fide jewellery of the tourist for her personal use and was intended to be taken out of India. In Saba Simran v. Union of India Ors. 2024 (12) TMI 19 - DELHI HIGH COURT this Court was seized with the issue of deciding the validity of the seizure of gold jewellery by the Customs Department from an Indian tourist. The Court considered the ambit of personal effects vis- -vis jewellery under the Baggage Rules in effect from time to time. A conspectus of the above decisions and provisions would lead to the conclusion that jewellery that is bona fide in personal use by the tourist would not be excluded from the ambit of personal effects as defined under the Baggage Rules. Further the Department is required to make a distinction between jewellery and personal jewellery while considering seizure of items for being in violation of the Baggage Rules. The Baggage Rules have to be interpreted in a manner that does not lead to unnecessary burden upon the tourist being either of Indian or foreign origin. Accordingly the term personal effects cannot exclude personal jewellery or ornaments as is clear from a harmonious reading of the Baggage Rules. Conclusion - i) The jewellery of the Petitioner which has been seized deserves to be released. Let the same be released within a period of two weeks from today to the Petitioner. Petition allowed.
1. ISSUES PRESENTED and CONSIDERED
The core legal issues considered in this judgment include:
2. ISSUE-WISE DETAILED ANALYSIS Jewellery vis-`a-vis personal effects under the Baggage Rules, 2016 The Baggage Rules, 2016, exclude jewellery from the definition of "personal effects," which are items required for satisfying daily necessities. However, the Court noted that the Baggage Rules permit a tourist of foreign origin to carry personal effects and travel souvenirs duty-free, provided they do not exceed a value of fifteen thousand rupees. Jewellery is specifically mentioned under Rule 5, allowing duty-free clearance for passengers residing abroad for over a year, with specific weight and value caps. The Court interpreted these provisions in light of precedents, including the Supreme Court's decision in Pushpa Lekhumal Tolani, which held that jewellery intended for personal use should not be excluded from personal effects. The Court emphasized the need for a distinction between "jewellery" and "personal jewellery" in the context of personal effects. Application of the Baggage Rules to tourists of foreign origin The Court referenced prior judgments, such as Nathan Narayansamy and Farida Aliyeva, which clarified that the Baggage Rules do not apply to foreign nationals in the same manner as they do to Indian residents. The Court concluded that the Petitioner, being a foreign national, was not required to declare her personal jewellery, as it was part of her personal effects. Procedural propriety of the Customs Department The Court noted the absence of a show cause notice following the seizure of the Petitioner's jewellery, highlighting procedural lapses by the Customs Department. The lack of contact details on the detention receipt further complicated the issuance of a show cause notice, suggesting procedural impropriety. Reconsideration of the Baggage Rules The Court acknowledged the need for the Central Board of Indirect Taxes and Customs (CBIC) to revisit the Baggage Rules, considering the current market value of gold and the potential for genuine tourists to face unnecessary hurdles. The Court emphasized that the rules should balance preventing illegal smuggling and avoiding harassment of bona fide tourists. 3. SIGNIFICANT HOLDINGS The Court held that the Petitioner's jewellery, being part of her personal effects, should not have been seized and directed its release. The judgment emphasized the necessity for the Customs Department to distinguish between "jewellery" and "personal jewellery" and to ensure procedural fairness in seizures. Key conclusions included:
In conclusion, the Court allowed the petition, directing the release of the seized jewellery and mandating procedural improvements for future cases. The judgment underscores the importance of balancing regulatory enforcement with the rights and convenience of travelers.
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