2024 (7) TMI 872 - HC - Customs

Interpretation of statute - whether Petitioner can bring into India a gold chain with pendant in which diamonds were embedded in accordance with Baggage Rules 1998? - HELD THAT - Petitioner has produced an invoice dated 22nd October 1989 to prove that the diamonds which were embedded in the pendant, were purchased by him from a U.S.A. jeweller. The said invoice is rejected by Respondents only on the ground that the invoice is not signed by the seller. Merely because the invoice is not signed by the seller could not have been a ground for rejecting the evidence. The adjudicating authority could have inquired from the seller from New York by writing a letter on the genuineness of the said invoice. However, no such steps were taken by the authorities and merely because the invoice did not bear the signature, the same came to be rejected. It is not uncommon that many times, the invoices are unsigned, but that cannot be the sole basis for rejecting the same. The phrase personal effect has to be construed in the context and cannot be interpreted dehors the facts of a particular case, more particularly when what is being considered is the value of the article. In the instant case, one cannot lose sight of the fact that Petitioner is engaged in the business of jewellery in U.S.A. for last 25 years and has been declaring income in the U.S.A. of USD-1,50,000/-. A person of such background could wear a chain with a pendant of high value. For a High Net Worth individual, an expensive watch of Rolex made would be his personal effect, but same may not be the case if a person is of a mere means. In the context of Petitioner s case merely by ascribing high value, the customs authorities were not justified in initiating the impugned proceedings and contend that same is not his used personal effects, moreso, because the diamonds were valued at (assuming) price prevailing on date of Petitioner s arrival whereas the diamonds were purchased in 1989, although already observed, as to how the exercise of valuation carried out by the Customs Authorities is vitiated. The Respondents are directed to refund the sum of Rs. 35,00,000/- deposited by the Petitioner within a period of four weeks from the date of uploading the present order.

Issues Involved:

1. Legality of the confiscation of the gold chain with a diamond pendant.
2. Applicability of Rule 6 and Rule 7 of the Baggage Rules, 1998.
3. Validity of the valuation of the diamonds.
4. Justification for the imposition of redemption fine and personal penalty.
5. Procedural lapses in the investigation and adjudication process.

Detailed Analysis:

1. Legality of the Confiscation of the Gold Chain with Diamond Pendant:

The Petitioner, a USA citizen of Indian origin, arrived in Mumbai on 6th May 2007 and was found wearing a gold chain with a diamond pendant. The Customs Officer seized the chain, alleging an attempt to smuggle diamonds into India. The Commissioner of Customs confiscated the chain under Section 111 of the Customs Act and imposed a penalty under Section 112(a) of the Act. The Tribunal and the High Court later remanded the matter for reconsideration, but the Commissioner of Customs upheld the confiscation and penalty. The Revisional Authority reduced the redemption fine and penalty but upheld the confiscation.

2. Applicability of Rule 6 and Rule 7 of the Baggage Rules, 1998:

The show cause notice invoked Rule 6 of the Baggage Rules, 1998, which limits duty-free import of jewelry to Rs. 10,000 for male passengers. However, the Tribunal held that Rule 6 was not applicable to the Petitioner, who was not an Indian resident returning from abroad but a foreign tourist. The Tribunal's finding was not challenged, making further adjudication based on Rule 7 beyond the scope of the original show cause notice. Rule 7, applicable to tourists, allows duty-free import of personal effects, including jewelry, if re-exported upon departure. The Petitioner argued that the chain was a "used personal effect" and thus duty-free under Rule 7.

3. Validity of the Valuation of the Diamonds:

The diamonds were valued at Rs. 1,20,35,000 by two individuals described as experts in the diamond trade. However, their credentials were not verified, and they were not produced for cross-examination despite Tribunal directions. The valuation process lacked credibility, as it did not involve a Government Approved Valuer. The inconsistencies in the panchnama and the absence of reliable witnesses further undermined the valuation.

4. Justification for the Imposition of Redemption Fine and Personal Penalty:

The Petitioner contested the imposition of a redemption fine and penalty, arguing that the chain was a personal effect and not subject to duty. The Petitioner provided an invoice from 1989 as proof of purchase, which was rejected by the authorities solely because it was unsigned. The Petitioner also cited Circular No. 72 of 1998, clarifying that personal jewelry is included within "personal effects" and not subject to duty unless new and in original packaging. The Petitioner argued that the chain was worn and thus not dutiable.

5. Procedural Lapses in the Investigation and Adjudication Process:

The investigation and adjudication process were marred by procedural lapses. The panchnama was drawn with inconsistencies regarding the timing of the flight's arrival and the presence of witnesses. The cross-examination of key witnesses revealed contradictions, and some witnesses were not made available for cross-examination. The authorities failed to verify the genuineness of the invoice provided by the Petitioner. The reliance on Rule 6 and subsequent invocation of Rule 7 without proper notice was procedurally flawed.

Conclusion:

The Court found multiple procedural and substantive flaws in the investigation and adjudication process. The confiscation of the gold chain with a diamond pendant and the imposition of redemption fine and penalty were deemed erroneous and bad in law. The Petitioner was entitled to duty-free import of the chain under Rule 7 of the Baggage Rules, 1998, as it was a personal effect. The Court quashed the impugned order, directed the refund of Rs. 35,00,000 paid by the Petitioner, and held that the Petitioner was not liable for penalty under Section 112 of the Customs Act.

← Previous Next →