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TMI Blog2022 (10) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of the proviso to Section 129 A (1) of the Customs Act, 1962 and thus the order of the Tribunal is set aside as bad in law. However, liberty is granted to the respondents to avail statutory remedy by way of a revision before the appropriate authority if so advised within a period of 8 weeks from the date of receipt of a copy of this order. If such revision is filed by the respondents within the time line set out above the Revisional Authoirty shall examine the matter and pass order on merits. As the Tribunal may not have jurisdiction to entertain the appeal in respect of an order relating to import of baggage, as a consequence W.P.No.4811 of 2021 praying for disposal of her jewellery which was premised on the order of the Tribunal which we have set aside appears to have become infructuous. However liberty is granted in the event of the petitioner succeeding in the challenge to the order of the appellate authority before the appropriate forum to avail any remedy that may be available to enforce such order in the manner known to law. Petition disposed off. - C.M.A. No.1716 of 2020 And W.P. No.4811 of 2021 - - - Dated:- 1-9-2022 - Honourable Mr. Justice R. Mahadevan An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seized since the Respondent had not declared the same and in the view of the Customs authority, she was ineligible to import gold. h. Vide letter dated 05.09.2016 she had waived issuance of show-cause notice. i. On 13.11.2016, the Respondent made a request to the Customs authorities to return the gold jewellery stating that she had come to Chennai only to attend a family function and that it was customary to wear gold for weddings. It was further clarified by her that she intended to be in Chennai only for 2 weeks and produced her return ticket. She had also produced bills/ invoices for the above chain and bangles from Haji Hameed Sheik Son . It was submitted that the jewellery owned by her was her personal jewellery which was gifted to her by her son out of love and affection, despite having produced the relevant invoices the Customs officials took custody of the jewellery and she was made to sign a statement and Mahazar which was stated to be neither translated nor explained. 3. The Principal Commissioner of Customs ordered absolute confiscation of gold chain and bangles (10 numbers of crude gold bangles) weighing 626 grams under Section 111(d) and (l) of the Customs A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zen a CRP PD No.248 of 2019 was filed seeking a direction to set a time frame to fix the hearing of the appeal by the Tribunal. This Court was pleased to direct the petitioners to make a mention before the Respondent Tribunal for early disposal and the Tribunal was directed to consider and dispose of the appeal on merits and in accordance with law within a period of 1 month from the date of mentioning. 6. Before the Tribunal, a preliminary objection was raised as to the jurisdiction of the Tribunal to entertain/ hear the appeal relating to Baggage in view of the restriction/ limitation imposed under the proviso to Section 129 A(1) of the Customs Act, 1962. It was submitted that the remedy of the Respondent was only with the Government of India, as a Revisional Authority. The above objection was however overturned by the Tribunal on the premise that in the present case, the allegation was failure on the part of the Respondent to comply with the conditions in relation to import of gold jewellery which led to its exclusion from Baggage and proceedings were made under Section 124 of the Customs Act, 1962 which falls within the jurisdiction of the Tribunal. Moreover, the Revenue havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed day; (d) an order passed by the Board or the 301 [Commissioner of Customs], either before or after the appointed day, under section 130, as it stood immediately before that day: 303 [Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such or relates to,rde- (a) any goods imported or exported as Baggage; (emphasis supplied) A reading of the above provision would show that the Tribunal shall not have jurisdiction to decide any appeal in respect of an order passed by the Commissioner (Appeals) under Section 128 A of the Customs Act, 1962 relating to any goods imported or exported as Baggage . b. Whether jewellery worn on the person would constitute Baggage , if the answer to the above question is in the affirmative it then seems doubtful if the Tribunal was right in assuming jurisdiction. In this regard, it may be relevant to refer to the following provisions: i) Rule 3 of the Baggage Rules, 2016: 3. Passenger arriving from countries other than Nepal, Bhutan or Myanmar.-An Indian resident or a foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng from countries other than Nepal, Bhutan or Myanmar.-An Indian resident or a foreigner residing in India or a tourist of Indian origin, not being an infant arriving from any country other than Nepal, Bhutan or Myanmar, shall be allowed clearance free of duty articles in his bona fide Baggage, that is to say, - (a) used personal effects and travel souvenirs; and (b) articles other than those mentioned in Annexure-I, upto the value of fifty thousand rupees if these are carried on the person or in the accompanied Baggage of the passenger: Provided that a tourist of foreign origin, not being an infant, shall be allowed clearance free of duty articles in his bona fide Baggage, that is to say, (a) used personal effects and travel souvenirs; and (b) articles other than those mentioned in Annexure- I, upto the value of fifteen thousand rupees if these are carried on the person or in the accompanied Baggage of the passenger: Provided further that where the passenger is an infant, only used personal effects shall be allowed duty free. Explanation.- The free allowance of a passenger under this rule shall not be allowed to pool with the free allowance of any other passenger. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound that gold ornaments worn by a passenger viz., Sri Lankan citizen would not constitute Baggage . It was held that Baggage connotes something distinct and different from the passenger who had brought the Baggage. Thereafter, the High Court proceeded to reject the argument in support of the order of confiscation that a foreigner cannot import a single gram of gold free of duty after recording that despite repeated query there was no provision which was brought to the notice of the Court which would show any such prohibition, the relevant portion of the order is extracted below: Facts: 10.......the second respondent has confiscated the gold chain worn by the petitioner on the short ground that a foreigner who is a tourist to India cannot import even a single gram of gold free of duty or on payment of duty. The second respondent has also found that the petitioner attempted to smuggle a 24 carat gold chain into India. He has on these findings ordered confiscation of the gold chain invoking section 111(d), (i), (l) (m) of the Act and also levied penalty under section 112(a) and (b) thereof. ....... 14. .....The question whether the Baggage Rules, 1998 have an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 111 could not have been invoked to confiscate the 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered opinion that the impugned order was passed without any legal foundation. ......... 26. 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 and what is not, without leaving it to the foreign tourist to guess what is prohibited and what is not. (emphasis supplied) 12. Though the above judgment of the Kerala High Court does indicate that Baggage would not include old ornaments worn by the passenger. However, the above judgment was rendered in the context ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs Nandkishore Ganesh Joshi Vs. Commr. Municipal Corporation Kalyan, AIR 2005 SC 34. It thus seems that the appellants may be right in its submission that the issue relates to Baggage falls within the exclusion carved out in terms of the proviso to Section 129 A (1) of the Customs Act, 1962 and thus the order of the Tribunal is set aside as bad in law. However, liberty is granted to the respondents to avail statutory remedy by way of a revision before the appropriate authority if so advised within a period of 8 weeks from the date of receipt of a copy of this order. If such revision is filed by the respondents within the time line set out above the Revisional Authoirty shall examine the matter and pass order on merits. 13. As we have decided that the Tribunal may not have jurisdiction to entertain the appeal in respect of an order relating to import of baggage, as a consequence W.P.No.4811 of 2021 praying for disposal of her jewellery which was premised on the order of the Tribunal which we have set aside appears to have become infructu ..... 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