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TMI Blog2014 (12) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... he gold chain worn by the petitioner. The gold chain was not concealed in any package and therefore it could not have been confiscated invoking clause (i) of Section 111. Even if it was dutiable, as it was not concealed in any manner in any package either before or after it was unloaded, it could not have been confiscated invoking clause (i) of Section 111 of the Act. At best, only the duty payable could have been levied. The Customs Act, 1962 or the Baggage Rules, 1998 do not stipulate that a foreign tourist entering India cannot wear gold ornaments on his person. The Customs Act, 1962 and the Baggage Rules, 1998 do not provide sufficient warning to foreign tourists entering India that wearing a gold chain is prohibited. The Act and the Rules do not even remotely indicate that a foreign tourist entering India cannot wear a gold chain on his person, in other words, foreign tourists entering India are in a boundless sea of uncertainty as to whether it is prohibited or not. As the Customs Act, 1962 and the rules framed thereunder contemplate confiscation and levy of penalty as also prosecution, the State has a duty to specify with a degree of certainty as to what is prohibited an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer of the Customs intercepted him, executed a search on his person and asked him to remove the gold chain he was wearing and declared that he is taking it into custody for contravention of the customs laws. The petitioner has further averred that though very many other passengers were wearing gold ornaments and jewellery, he alone was taken to the Air intelligence Office Unit within the airport and made to sign on a typed sheet of paper purporting to be a statement made by him under Section 108 of the Customs Act, 1962 (hereinafter referred to as the Act for short). A copy of the said statement is on record as Ext. P2. The writ petition proceeds to state that he was thereafter served with a copy of Ext. P3 order passed by the second respondent ordering confiscation of the gold chain seized from him and levying a penalty of ₹ 5,000/-. It is stated that believing the promise held out by the second respondent that the gold chain will be returned on payment of the penalty, he remitted the sum of ₹ 5,000/- levied as penalty with the Exchange Bureau of State Bank of Travancore at Cochin International Airport on 22-2-2014 itself and thereupon, Ext. P4 receipt was issued. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he gold chain should not be confiscated and though several other passengers were wearing gold ornaments, he alone was subjected to punitive action and discriminated against. The petitioner has in Ground C of the writ petition contended that the Baggage Rules, 1998 have no application to the instant case for the reason that the confiscated gold chain was worn by him and was not carried in a baggage. 4. I heard Sri Aswin Gopakumar, learned counsel appearing for the petitioner, Sri John Varghese, learned Senior Counsel for Central Board of Excise and Customs, who took notice when the writ petition first came up for admission hearing before me on 5-3-2014. Sri Aswin Gopakumar, learned counsel appearing for the petitioner contended that Notification No. 117/92, dated 1-3-1992 which is said to have been violated, does not apply to the case on hand as it deals with the duty payable on gold imported into India by a passenger of Indian origin or holding an Indian passport, that in the instant case, the gold chain (84 grams) was not brought in the petitioner s baggage but was worn by him and therefore, it was not liable to be declared in the baggage declaration contemplated in Section 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re on that short ground, the instant writ petition is liable to be dismissed. 6. I have considered the submissions made at the Bar by the learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. Ext. P2 statement purporting to be one given by the petitioner before the Superintendent of Customs, Air Intelligence Unit, Cochin International Airport, Nedumbassery on 22-2-2014 conclusively establishes the fact that the gold chain was recovered from his person. The statement does not contain an admission by the petitioner to the effect that it was concealed by him in his body or in a baggage. There is also no such finding in Ext. P3 order. The finding is only to the effect that on personal search (PS) it was obtained. Ext. P2 statement also discloses that the petitioner had with him only one piece of hand baggage and no contraband was recovered from it or from his person. The relevant portion of Ext. P2 statement reads as follows :- Today on 22-2-2014 on my arrival at Cochin Airport and after clearance of immigration formalities/hand x-ray, I opted for green channel. In the green channel, Customs officers asked me whether I have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the gold chain of 24 carat brought by him was for sale in India to make a profit. He wanted to take a lenient view. 8. The finding entered by the second respondent in Ext. P3 is as follows :- I have gone through the records. I find that the passenger is a foreigner who is not entitled to import even a single gram of gold free of duty or on payment of duty. The gold chain attempted to be smuggled by him is crude and is of 24 carat purity. He requested for a lenient view but I take the following decision. (emphasis supplied) 9. The operative portion of Ext. P3 order reads as follows : I order absolute confiscation of 84.000 gms of gold valued at ₹ 2,55,360/- listed at Sl. No. 3 of pre-page under Section 111(d), (i), (l) (m) of the Customs Act, 1962 read with Section 3(3) of the Foreign Trade (D R) Act, 1992. I further impose a penalty of ₹ 5,000/- (Rupees Five Thousand Only) under Section 112(a) and (b) of the Customs Act, 1962 on the passenger. 10. It is evident from Ext. P3, the relevant portions of which have been quoted above, that the second respondent has confiscated the gold chain worn by the petitioner on the sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to confiscation. Clause (i) of Section 111 of the Act stipulates that any dutiable or prohibited goods found concealed in any manner in any package either before or after the unloading thereof are also likewise liable to confiscation. Clause (l) of Section 111 of the Act stipulates that any dutiable or prohibited goods which are not included or are in excess of those included in the entry made under the Act, or in the case of baggage in the declaration made under Section 77 are also liable to confiscation. Clause (m) of Section 111 of the Act stipulates that any goods which do not correspond in respect of value or in any other particular with the entry made under the Act or in the case of baggage with the declaration made under Section 77 in respect thereof or in the case of goods under transshipment, with the declaration for transshipment referred to in the proviso to sub-section (1) of Section 54, are also liable to confiscation. 14. Section 112 of the Customs Act, 1962 relied on to levy a penalty of ₹ 5,000/- on the petitioner reads as follows : 112. Penalty for improper importation of goods, etc. - Any person,- (a) who, in relation to any goods, does or o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose of clearing it make a declaration of its contents to the proper officer. The term baggage is defined in Section 2(3) of the Act to include unaccompanied baggage. Motor vehicles are excluded from the purview of the said definition. The declaration under Section 77 is to be made by the owner of the baggage. The term baggage ordinarily connotes suitcases or bags or containers in which a traveller carries his/her goods or belongings. Section 2(22) of the Act defines the term goods to include baggage. Having regard to the stipulations in Section 77 and the definition of the term baggage occurring in Section 2(3) of the Act, the body of a passenger cannot be said to be baggage. In the instant case, the gold chain was worn by the petitioner and was not carried in his baggage. It was therefore not necessary for the petitioner to declare the gold chain worn by him. Section 80 of the Act clarifies the position. Section 80 stipulates that the baggage of a passenger, which contains any article which is dutiable or the import of which is prohibited, may be detained at the request of the passenger for the purpose of being returned to him on his leaving India. The term baggage thus con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evied. There is also yet another reason why the impugned action cannot be sustained. Even assuming for the sake of arguments that a foreign tourist arriving in India cannot wear gold ornaments on his/her person in view of an express provision of law in that regard (such a statutory provision was not brought to my notice and it is not referred to in Ext. P3 order), the respondents should have informed the petitioner that he cannot wear it for the reason that the import of it is prohibited and given him the option of having the goods detained for the purpose of being returned to him on his leaving India as contemplated in Section 80 of the Act. The respondents have not stated in Ext. P3 that such an option was extended to him and therefore for that reason also, the impugned order is liable to be set aside. 17. The fact that the petitioner is a tourist of foreign origin is not in dispute. Rule 7 of the Baggage Rules, 1998 as amended stipulates that a tourist arriving in India shall be allowed clearance free of duty, articles in his bona fide baggage to the extent mentioned in column (2) of Appendix E. 18. Rule 7 of the Baggage Rules, 1998 reads as follows :- A tourist arrivi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rist of foreign origin. This fact is not in dispute. Going by entry (b) in Appendix-E, tourists of foreign origin, other than those of Pakistani origin coming from Pakistan, coming to India by air can be allowed clearance free of duty (i) his or her used personal effects and (ii) articles other than those mentioned in Annexure-I, up to a value of ₹ 8000 for personal use of the tourist or as gifts and travel souvenirs if these are carried on the person or in the accompanied baggage of the passenger. Annexure I referred to in Appendix E is extracted below for easy reference :- 1. Firearms. 2. Cartridges of fire arms exceeding 50. 3. Cigarettes exceeding 200 or cigars exceeding 50 or tobacco exceeding 250 gms. 4. Alcoholic liquor or wines in excess of two litres. 5. Gold or silver, in any form, other than ornaments. 21. The effect of the aforesaid stipulations in Appendix-E and Annexure-I of the Baggage Rules, 1998 is that a tourist of foreign origin coming to India by air is not entitled to duty free clearance of firearms, cartridges of fire arms exceeding 50 numbers, cigarettes exceeding 200 or cigars exceeding 50 or tobacco exce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding a valid passport issued under the Passports Act, 1967 (15 of 1967), as baggage, from so much of the duty of customs leviable thereon which is specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), as is in excess of the amount calculated at the rate of ₹ 450 per ten grams : Provided that :- (i) such passenger is coming to India after a period of not less than six months of stay abroad; and (ii) the duty at the rate specified above shall be paid in convertible foreign currency. Provided further that the exemption contained in this notification shall apply only to a quantity of such gold not exceeding five kilograms per passenger. V.V. HARIHARA, Under Secy. 24. Later, it was superseded by Notification No. 171/94-Cus., dated 30-9-1994, with effect from 1-11-1994. The notification dated 30-9-1994 was superseded by Notification No. 31/2003-Cus., dated 1-3-2003. Still later Notification No. 3/2012-Cus., dated 16-1-2012 was issued in supersession of the notification dated 1-3-2003. The notification dated 16-1-2012 is extracted below :- NOTIFICATION New Delhi, the 16th January, 2012 NO. 3/2012-CUSTOMS G.S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble passenger at the time of his arrival in India or is imported by him within fifteen days of his arrival in India. Notwithstanding anything contained above, the exemption under this notification shall also apply to gold or silver taken delivery of by an eligible passenger from a customs bonded warehouse of the State Bank of India or the Minerals and Metals Trading Corporation Ltd., subject to the conditions (i) and (ii) of para 2 above, and subject to further condition that such eligible passenger files a declaration in the prescribed form before the proper officer of customs at the time of his arrival in India declaring his intention to take delivery of the gold or silver from such a customs bonded warehouse and pays the duty leviable thereon before his clearance from customs. Explanation :- For the purposes of this notification, eligible passenger means a passenger of Indian origin or a passenger holding a valid passport, issued under the Passports Act, 1967 (15 of 1967), who is coming to India after a period of not less than six months of stay abroad, and short visits, if any, made by the eligible passenger during the aforesaid period of six months shall be ignored if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee of certainty as to what is prohibited and what is not, without leaving it to the foreign tourist to guess what is prohibited and what is not. 27. The Apex Court has in Kartar Singh v. State of Punjab [(1994) 3 SCC 569] held that vague laws offend several important values. It was held that it is insisted or emphasised that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. The Apex Court also held that vague laws may trap the innocent by not providing fair warning, that such a law impermissibly delegates basic policy matters to policemen and also to judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. The relevant portion of the decision of the Apex Court in Kartar Singh v. State of Punjab [(1994) 3 SCC 569] is extracted below : 130. It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. It is insisted or emphasised that laws should give the person of ordinary intelligence a reasonable opport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o statutory stipulation to that effect was brought to my notice. In the absence of a statutory prescription in express terms to the effect that a foreign tourist entering India should not wear 24 carat gold jewellery much less gold jewellery, I am of the opinion that the impugned order cannot be sustained. 30. The Apex Court has in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Others (AIR 1999 S.C. 22) reiterated the proposition that the jurisdiction of the High Court to entertain a writ petition under Article 226 of the Constitution of India is not affected in spite of alternative statutory remedies in cases where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation. In the view that I have taken it has to be necessarily held that the order of confiscation passed in the instant case is one without a legal foundation. I therefore overrule the contention of the learned counsel appearing for the respondents that the petitioner should be relegated to the alternative statutory remedies available to him. 31. For the reasons stated above, I allow the writ petition, quash ..... X X X X Extracts X X X X X X X X Extracts X X X X
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