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TMI Blog2006 (9) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... rit petition some time in 2003 and since then the petition is pending. 2. The Petitioner is a person of Indian origin and is an Indonesian national. She is settled in England along with her husband and daughter. On 18th November, 2002 she and her husband came to India on British Airways flight No. BA 143 from London apparently to attend a wedding. At Delhi airport, the Petitioner was going through the Green Channel and was intercepted by the Customs officials, who asked her whether she had any dutiable items to declare, to which she replied in negative. Thereafter, it appears that she and her husband were detained and a personal search was carried out which indicated that even though she had seven pieces of checked in baggage, nothing incriminating was recovered from those baggages. She was also carrying two hand bags. Upon examination of those bags, it was revealed that the said bags contained 28 packages containing 44 items of jewellery which she had brought perhaps for wearing at the wedding. 3. Her husband was also carrying two baggages but no dutiable items were found in these two baggages. The Petitioner made a statement under Section 108 of the Customs Act which has been p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequently superseded by the Baggage Rules, 1998 and the relevant rule in this regard relating to Tourists is Rule 7, which reads as under:- "A tourist arriving in India shall be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." Appendix E in so far as it is relevant to tourists like the Petitioner who come from countries other than Pakistan, Nepal or Bhutan is as follows:- (b) Tourists of foreign origin other than those of Nepalese origin coming from Nepal or of Bhutanese origin coming from Bhutan or of Pakistani origin coming from Pakistan. (i) used personal effect and travel souvenirs, if - (a) these goods are for personal use of the tourist, and (b) these goods, other than those consumed during the stay in India, are re-exported when the tourist leaves India for a foreign destination (ii) articles upto a value of Rs.4,000 for making gifts. 11. It is submitted by learned counsel for the Petitioner that her jewellery were her personal effects and, therefore, its import did not violate any provisions of the Baggage Rules, 1998. He also drew our attention to a circular bearing No.72/98-Cus, dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned counsel for the Petitioner submitted that since the jewellery was "personal effects" and there was no requirement of declaring one's personal effects, the Petitioner had not committed any offence under the Customs Act. 13. Learned counsel for the Petitioner has drawn our attention to the statement of the Petitioner to the effect that goods are valued at U.K. Pound Sterling 1,10,000/- which is equivalent to Rs.1.27 crores. However, during the cross-examination of the witnesses produced on behalf of the customs authorities before the adjudicating authority, it was stated by the witnesses that the value of the goods would be about Rs.25 lakhs. In fact, one of the witnesses had also stated that the jewellery imported by the Petitioner is not imported in India for sale because such products are exported from India. Under the circumstances, the contention was that there could not be any question of smuggling these goods into India. 14. On the other hand, learned counsel for the Respondent contended that the Petitioner had filed a form before she left England wherein she claimed refund of VAT which clearly indicates that she had the intention of not taking the goods back to Engla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of no consequence. Moreover, we cannot ignore the contention of the Petitioner to the effect that her parents are in Indonesia and she had plans of proceeding to Indonesia. She had stated that she had planned to purchase return air tickets from Delhi to Jakarta (Indonesia)/Singapore, as she had been doing so in the past, while in Delhi and she also produced evidence of her similar previous purchases before the Respondents. 18. Some of the jewellery items items purchased by the Petitioner were for her personal use and some were intended to be left with her parents in Indonesia. One of the items confiscated by the customs was a silver panther which was valued in U.K. Pound Sterling 9,460/- for which the Petitioner did not claim exemption from VAT because it was to be taken back to England by the Petitioner. To this extent, the conduct of the Petitioner appears to be consistent and bona fide. 19. The overall circumstances show that even though she brought jewellery of a huge amount into the country, the Petitioner did not seem to have the intention to smuggle the jewellery into India and to sell it off. If jewelleries were to be sold in India, its cost was only about Rs.25 lakhs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iet reasonable that a traveller may make purchases of his personal effects before embarking on a tour to India. It could be of any personal effect, including jewellery. Therefore its newness is of no consequence. The expression "new goods" in their original packing has to be understood in a pragmatic way. What it conveys is that the personal effects which are in their original sealed packing, as they would be when bought off the shelf, which have not even been opened/unpacked (because that is what can confirm their newness) and can therefore be disposed of as such, without even opening the packaging, that is, "off hand", may prima facie be presumed not to constitute a personal effect of the tourist. 23. In the present case, it is not the case of the Respondents that the jewellery of the Petitioner was in such a packed/sealed state, whereby it could be concluded with certainty that they were new, and which could be disposed of off hand. 24. Even otherwise, even if the new personal effects are in the "original packing and which can be disposed of off hand", it merely raises a presumption that the personal effects have been brought in with a view to dispose them of in India. S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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