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TMI Blog2012 (9) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel submitted that according to him, the appeal shall lie to the Tribunal only and sought time to present detailed argument. Accordingly, the matter was adjourned and was taken up today. 2. Ld.Advocate on behalf of the appellant submitted that in the case of M. Ambalal & Co. 2010 (260) ELT 487 (SC), the Hon'ble Supreme Court had distinguished between the imported goods and smuggled goods. It is his submission that following the decision of Hon'ble Supreme Court, the goods in this case, come under the category of smuggled goods and not imported goods. According to Section 129A, the Tribunal has no jurisdiction only when the goods are imported as passenger baggage. The second submission he would like to make is that according to F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd personal effects may be imported as a part of passenger baggage as per limit, terms & conditions thereof in baggage rules notified by Ministry of Finance. Further, the Foreign Trade Policy also required a passenger to give a declaration. According to Section 2(3) of Customs Act, 1962, baggage includes unaccompanied baggage but does not include the motor vehicle. Reading of the definition of the baggage under Customs Act, 1962 and provisions of Foreign Trade Policy would clearly show that the baggage can consist of any item except motor vehicles. Assessment of baggage as per Foreign Trade Policy is subject to the terms and conditions and limits as per the baggage rules. Section 78 of Customs Act, 1962 requires the passenger to give a decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson 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 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relation to any goods at any time between their importation and the time when they are cleared for home consumption includes any owner or any person who holding himself out to be importer. The word smuggling , in relation to goods, means any act or omission which will render such goods liable to confiscation under Section 111 or Section 113 of the Act. 8. Further, the Hon'ble Supreme Court has remanded the matter to the Tribunal in the case of M. Ambalal & Co. and the Tribunal has passed an order on remand by Hon'ble Supreme Court as reported in 2012 (281) ELT 432 (Tri-Mum.). In the case of M. Ambalal & Co., the Revenue wanted to charge the duty on the goods considering them as baggage. The Tribunal has denied it on the ground that the sei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d accordingly. The question would then arise what would be the relevant classification for the purpose of levy in the instant case. Diamonds, whether or not worked, but not mounted or set fall under Heading No. 71.02 of the Customs Tariff. 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. 9. The observations reproduced above would clearly show that if the goods have been brought as baggage, they have to be treated as baggage only. This decision clearly provides that only when the goods are not brought as baggage, the other methods of assessment can be considered. In that case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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