2012 (9) TMI 824 - AT - Customs

Non-declaration of gold in the baggage of the passenger - appeal to tribunal rejected on lack of jurisdiction - Held that - When the goods are brought into India from a place outside India (in this case, baggage) till they are cleared for home consumption, they are considered as imported goods. In this case, before the clearance has taken place from the airport, the goods have been seized. The definition of the importer also provides that the person is considered to be importer till the goods are cleared for home consumption and when he holds himself to be an importer or the owner of the goods. In terms of above provisions, it becomes quite clear that in this case, whatever is brought by a passenger from abroad is considered as baggage and the passenger is required to make a declaration under Section 77 and till the goods are declared and cleared from Customs area (airport) after declaration, the goods remain imported goods and the person remains the importer. Going by this analogy also, the goods in this case can be considered as imported goods only and as already mentioned earlier, Section 129A provides that the Tribunal has no jurisdiction in respect of any goods imported or exported as baggage - the appeal has to be rejected as not maintainable on the Tribunal having no jurisdiction and since the jurisdiction lies with Government of India Registry is directed to transfer the file to GOI for necessary action. Since the goods under seizure are rough as well as cut and polished diamonds, they would be correctly classifiable under Heading No. 71.02 of the Customs Tariff for the purpose of levy and we hold accordingly.

Summary

Issues involved:
1. Jurisdiction of the Tribunal regarding non-declaration of gold in passenger baggage under Section 129A of Customs Act, 1962.

Detailed Analysis:
The issue in this case revolves around the jurisdiction of the Tribunal concerning the non-declaration of gold in a passenger's baggage. The appellant argued that the goods should be considered as smuggled goods rather than imported goods, thus falling under the Tribunal's jurisdiction. The appellant relied on the distinction between imported and smuggled goods as established by the Hon'ble Supreme Court in a previous case. Additionally, the appellant highlighted the requirement of declaration for bonafide household goods and personal effects under the Foreign Trade Policy, emphasizing that the lack of declaration categorizes the goods as smuggled. The appellant also referenced the definition of goods under Section 2(22) of the Customs Act, 1962, to support the argument that baggage is included in the definition of goods.

The Tribunal considered the submissions from both sides, analyzing the relevant provisions of the Foreign Trade Policy, Customs Act, and definitions of imported goods. The Tribunal noted that the baggage rules under the Foreign Trade Policy allow for the import of household articles within specified limits and conditions, requiring a declaration by the passenger. Furthermore, the Tribunal explained that under the Customs Act, baggage includes various items except motor vehicles, and passengers must declare their contents to the proper officer for clearance. The Tribunal emphasized that until goods are cleared for home consumption, they are considered imported goods, and the person bringing them remains the importer.

The Tribunal rejected the appellant's argument that the goods should be treated as smuggled goods due to non-declaration. The Tribunal clarified that as long as goods are within the Customs area awaiting clearance, they retain the status of imported goods. The Tribunal referenced a previous case where the Tribunal denied charging duty on goods considered as baggage since there was no evidence of them being imported as such. The Tribunal concluded that in the present case, the gold jewelry was brought as part of baggage and not declared, thus remaining imported goods until cleared from the Customs area.

Regarding the cited Tribunal decision by the appellant, the Tribunal differentiated the facts of the case at hand, noting that the impugned order was issued by the Commissioner, not the Commissioner (Appeals), and therefore the Tribunal had jurisdiction. Ultimately, the Tribunal found the appeal to be not maintainable due to lack of jurisdiction and directed the transfer of the file to the Government of India for necessary action.