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TMI Blog2015 (3) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... of the clear language of Section 79 of the Customs Act, the Explanation was put under Appendix "A" to exclude any claim for free allowance by a passenger, by pooling the free allowance of any other passenger. Any other interpretation, as contended by the petitioners, shall render the said Explanation otiose. After considering the provisions of sub-section (2) of Section 79 of the Custom Act, as stated above and the relevant Rules of the said Baggage, I cannot but hold, that in Rule 2(d) of the said Baggage Rules, the definition of "family" has been provided for the purpose of interpreting the user of an article brought by a passenger for the use of his family under Section 79(2)(b) of the Customs Act and the said definition of family in Rule 2(d) of the Baggage Rules does not create any ambiguity. Thus, none of the decision of the Supreme Court cited by Mr. Dutt in the cases of C. Krishna Prasad (1974 (11) TMI 2 - SUPREME Court), has any manner of application in this case. - illegality in the collection of customs duty for a sum of Rs . 39,984/- from the petitioners on account of the said television sets and consequently the writ petition fails - Decided against assessee. - WP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is evident that value of each of the said television sets was Rs . 81,000/- and an allowance of Rs . 25,000/- was allowed in respect of each of the said television sets and thereafter customs duty was imposed at the rate of Rs . 19,992/- for each of the said television. By a letter dated October 20, 2005 the petitioners' advocate called upon the respondent nos. 1, 2 and 3 to refund of the said sum of Rs . 39,984/-. In the said letter dated October 20, 2005 the advocate of the petitioners reiterated that since all the nine members of the family of the petitioners landed at the said Airport on October 17, 2005 together, in terms of Section 79 of the Customs Act, read with Rule 2(iv) and Rule 3 (Appendix-'A') of the said Baggage Rules, they were entitled to exemption, by way of free allowance, on the entire value of the said television sets totaling Rs . 1,79,900/ - . In reply, by two separate letters dated October 31, 2005, the respondent customs authorities refused to entertain the claim of the petitioners for refund. The customs authorities relied on the Explanation appearing below Appendix 'A' of Rule 3 of Baggage Rules 1998 that the free allowance under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs . reported in (2013) 6 SCC 333 where it was held that the use of the expression includes in the definition clause makes it exhaustive, whereas the user of the expression means in the definition clause prima facie indicates the definition to be restrictive and exhaustive. Lastly, he cited another decision of the Supreme Court in the case of Commissioner of Income Tax (Central)-I, New Delhi vs. Vartika Township (P) Ltd. reported in (2015) 1 SCC 1. He relied on paragraph 41.2 of the said decision, where the Supreme Court reiterated the settled principle of law that there cannot be imposition of any tax without the authority of law and if the provision of law imposing any tax is ambiguous or vague and is susceptible to two interpretations, the interpretation which favours the subjects, as against Revenue, has to be preferred. Per contra, Ms. Asha Gutgutia , learned advocate, appearing for the respondent customs authorities submitted that there is no merit in the claim of the writ petitioners in this writ petition. She strenuously contended that from a fair reading of the provisions contained in Section 79 of the Customs Act read with Rule 3 and Appendix-A of the said Baggage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pendix to these rules; (ii) resident means . (iii) tourist means (iv) family includes all persons who are residing in the same house and form part of the same domestic establishment; RULE 3. Passengers returning from countries other than Nepal, Bhutan, Myanmar or China - An Indian resident or a foreigner residing in India, returning from any country other than Nepal, Bhutan, Myanmar or China, shall be allowed clearance free of duty articles in his bona fide baggage to the extent mentioned in column (2) of Appendix A. [Provided that such Indian resident or such foreigner coming by land route as specified in Annexure IV, shall be allowed clearance free of duty articles in his bona fide baggage to the extent mentioned in column (2) of Appendix B'.] APPENDIX A (See rule 3) (a) All passengers of and above [10 years] of age and returning after stay abroad of more than three days. ( i ) .. (ii) [Articles other than those mentioned in Annex. I upto a value] of [ Rs . 25,000/-] if these are carried on the person or in the accompanied baggage of the passenger. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f any article brought by a passenger himself/herself, for his/her personal use or for the use of his/her family. There cannot two opinion that the word family appearing in clause (b) of sub-section (1) of Section 79 relates to the user of the article(s) brought by any passenger from foreign countries. The said Baggage Rules were framed under Section 79(2) of the Customs Act for regulating the exemption granted under the enabling section 79(1) of the said Act and while framing the said Baggage Rules the Central Government was conscious of the fact that as per Section 79 exemption is granted in respect of an article or articles in the baggage of an individual passenger brought for his own use or for the use of his/her family. Thus, in order to ensure that the user of the words All Passengers in the opening sentences in Clauses (a) to (d) under Column 1 of the said Appendix does not give rise to any ambiguity in spite of the clear language of Section 79 of the Customs Act, the Explanation was put under Appendix A to exclude any claim for free allowance by a passenger, by pooling the free allowance of any other passenger. Any other interpretation, as contended by the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X
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