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TMI Blog1992 (4) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... on 111(d) of the Customs Act, 1962, giving an option to redeem the same on payment of a certain redemption fine and also imposing different penalties on the appellants, as detailed out in his orders. Against these orders of the Assistant Collector of Customs, the appellants filed their separate appeals before the Collector of Customs (Appeals), New Delhi, who disposed of the said appeals by his two different impugned Orders. Hence all the present 19 appeals. ; 3. The facts of Appeal No. C/2291/91-NRB are that, the appellant, a Afghan national, claiming transit passenger brought 2000 bottles of hair dye into India. The same were ordered to be confiscated by the Assistant Collector and he also imposed a penalty of Rs. 1,000/- upon the appellant. On appeal, the Collector of Customs (Appeals), Bombay, vide his impugned Order-in-Appeal No. 620/91-Begg issued on 22-3-1991 upheld the Order of confiscation observing that the appellant cannot be treated as a transit passenger and since the goods are trade goods and he did not declare the same, the goods were rightly confiscated. However, he modified the Order of confiscation by giving an option to the appellants to redeem the same on paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants brought the goods in commercial quantity and the Collector (Appeals) upheld the Orders passed by the Assistant Collector observing that from the nature and quantity of the goods imported by the appellants it is evident that the goods imported are for sale and do not constitute their bona fide baggage. In the case of Union of India v. Khalil Kecherim of Teheran, supra, the Delhi High Court after referring to the provisions of Sections 79 and 80 of the Customs Act and Clause 3 of the Tourists Baggage Rules, 1958, clearly held that merchandise per se is not excluded from the term personal effects used in the explanation to clause 3 of the Tourists Baggage Rules, 1958. The exclusion is in respect of merchandise which is imported for commercial purposes. Following the ratio, we hold that the present 19 appeals are maintainable. 7. From the impugned Orders passed in Appeal No. C/2291/91-NRB, we find that the Collector (Appeals), Bombay, held that the appellants cannot be treated as a transit passenger and the 2000 bottles of hair dye are trade goods which were not declared by the appellants. In view of these findings and following the ratio of the said decision rende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Singh, the Ld. Consultant, was that the lower authorities had not accepted the declaration of the appellants that what they had imported and presented for examination by the Customs was their bona fide baggage and had, therefore, ordered confiscation and imposed penalty. Shri Singh had submitted that once the Customs Authorities had, themselves, not accepted the imported articles as baggage, proviso to Section 129(1) of the Act was not attracted, and the Tribunal would have jurisdiction in the matter. On the contrary, Shri G. Bhushan, the Ld. S.D.R. had submitted that the wordings of the first proviso were very clear and specific. The jurisdiction of the Tribunal was excluded once, the goods are imported as baggage . Since the appellants had imported the goods as baggage and had presented them for examination for the purpose of clearing them, the Tribunal did not have jurisdiction to hear these appeals and the appellants could file a Revision Application to the Central Government under Section 129DD of the Act. He also submitted that ever since the amendment of Section 129A of the Act in 1984, no appeals were being filed in these matters in the Tribunal because it did not have j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B is to be allowed, as held by the Judicial Member or to be rejected, as not maintainable as held by the Technical Member . The said point of difference is referred to the President, in terms of Section 129-C(5) of the Customs Act, 1962. Sd/- (N.K. Bajpai) Member (T) 12-12-1991 Sd/- (G.P. Agarwal) Member (J) 12-12-1991 The difference of opinion is referred to Ms. Jyoti Balasundaram, Member (J). Sd- Harish Chander 16-12-1991 18. [Order per: Jyoti Balasundaram, Member (J), on reference]. - This miscellaneous application has been referred to me in terms of Section 35D(1) of the Central Excises and Salt Act, 1944 read with sub-section (5) of Section 129 of Customs Act, 1962 for resolving the difference of conflicting views between the Hon ble Member (J) and Hon ble Member (T) in order dated 10-12-1991. 19. I have heard Shri N. Singh, learned Consultant for the applicants and Shri G. Bhushan, learned S.D.R. for the respondents. The facts of the case have already been set out in the order leading to the reference and are hence not required to be reproduced. 20. The proviso to Section 129A of the Customs Act, 1962 excludes the jurisdiction of the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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