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TMI Blog2024 (12) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... iously sought to introduce a distinction between personal jewellery and the word jewellery per se as it appears in the Appendices. The clear intent of that Circular appears to have been to include personal items of jewellery or ornaments within the meaning of the expression personal effects . When the aforesaid 1998 Rules came to be amended in 2006, by virtue of the Baggage (Amendment) Rules, 2006 [2006 Amendment], the stipulation with respect to articles allowed entry free of duty remained the same except for the increased monetary limits of INR 35,000/-, 15,000/- and 3,000/- which came to be incorporated. Rule 2(vi) of the 2016 Rules essentially adopts the same concept of used personal effects as was intended under the 1998 Rules, and by way of abundant caution, a definition now stands placed in the 2016 Rules and which purports to define the expression personal effects with sufficient clarity. However, the same would not detract from the distinction which the respondents themselves acknowledged in the Circular and intended customs officers to bear in mind the distinction which must be recognised to exist when construing and identifying personal jewellery as opposed to jewellery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Respondent no. 3 at the time when Petitioner was returning from Dubai after completing her movie shoot; and/or (c) Issue of Writ/Writs in the nature of Certiorari or any other writ or direction in the nature thereof and direct the respondent no. 3 to pay a compensation of Rs. 25,00,000/- for mental agony and harassment. 2. The petitioner had travelled from Bengaluru to Dubai on 22 May 2023 for the shooting of her film. She returned on 25 May 2023 by an Indigo flight from Dubai at Delhi International Airport, Terminal-3 and opted for the green channel. She was intercepted by a Customs Officer after she had crossed the green channel. On her search, one plastic box containing 3 gold bangles, weighing 130 grams, 15 gold beads (parts of bracelets) weighing 89 grams were recovered. The recovered goods were detained vide Detention Receipt dated 25 May 2023. 3. Order-in-Original dated 21 September 2023 was passed concluding as under:- (i) I deny the 'Free Allowance' if any admissible to the Pax Ms. Simran Saba for not declaring the detained goods to the Proper Officer at Red Channel as well to the Customs Officer at Green Channel who intercepted her and recovered the detained go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are introduced by virtue of Rules 3 and 4 of the 2016 Rules clearly apply to articles which are sought to be imported. However, and in our considered opinion, items which are personal in nature as opposed to those having been acquired with the intent to import would not be subject to those prescriptions. 7. The respondents would bid us to interpret the 2016 Rules as being confined to personal effects exclusive of jewellery, whether it be personal or otherwise. It is their contention that the monetary limits which are prescribed in the Proviso to Rule 3 as well as Rule 4(b) thereof would govern and be determinative of the value of jewellery that may be carried by an incoming passenger and allowed duty-free. 8. However, and in order to examine the correctness of this contention, it would be fruitful to refer to the legislative history of the rules pertaining to baggage as framed in exercise of the powers conferred by Section 79 of the Act. 9. If we were to travel back in time to the Baggage Rules, 1998 [1998 Rules] , it becomes apparent that those rules did not incorporate a definition of personal effects in explicit terms. Appendices A and B thereof, however, while declaring article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notn. No. 30/98-Cus (NT) dated 2/6/98 has provided for import of duty free goods by tourists in Regulation 7 as contained in Appendix 'E' of the said rules. There is no definition for personal effects in the present Baggage Rules. However, for the sake of uniformity it is considered necessary to reiterate that the personal effects would include the following goods: (i) Personal jewellery (ii) One camera with film rolls not exceeding twenty (iii) One video camera/ camcorder with accessories and with video cassettes not exceeding twelve (iv) One pair of binoculars (v) One portable colour television (not exceeding 15 cms in size) (vi) One music system including compact disc player (vii) One portable typewriter (viii) One perambulator (ix) One tent and other camping equipment (x) One computer (laptop/ note book) (xi) One electronic diary (xii) One portable wireless receiving set (transister radio) (xiii) Professional equipments, instruments and Apparatus of appliances including professional audio/ video equipments (xiv) Sports equipments such as one fishing outfit, one sporting fire arm with fifty cartridges, one non-powdered bicycles, one canoe or ranges less than 51 metres l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stay abroad of more than three days. Used personal effects, excluding jewellery, required for satisfying daily necessities of life. Articles other than those mentioned in Annex. I upto a value of Rs. 12,000 if these are carried on the person or in the accompanied baggage of the passenger. All passengers upto 10 years of age and returning after stay abroad three days or less. Used personal effects, excluding jewellery, required for satisfying daily necessities of life. Articles other than those mentioned in Annex. I upto a value of Rs. 3,000 if these are carried on the person or in the accompanied baggage of the passenger. Explanation . The free allowance under this rule shall not be allowed to be pooled with the free allowance of any other passenger. APPENDIX B (See rule 4) (1) (2) Passengers of and above 10 years of age and returning after stay abroad of more than three years Used personal effects, excluding jewellery, required for satisfying daily necessities of life. Articles other than those mentioned in Annex. I upto a value of Rs. 6,000 if these are carried on the person or in the accompanied baggage of the passenger. Passengers upto 10 years of age and returning after stay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the respondents themselves and which was explained and highlighted in the clarificatory Circular referred to above. That Circular had come to be issued at a time when the Appendices to the 1998 Rules had employed the phrase used personal effects, excluding jewellery . The clarification is thus liable to be appreciated in the aforesaid light and the statutory position as enunciated by the respondents themselves requiring the customs officers to bear a distinction between personal jewellery and the word jewellery when used on its own and as it appears in the Appendices. This position, in our considered opinion, would continue to endure and remain unimpacted by the provisions contained in the 2016 Rules. 17. This Court had an occasion to consider the issue of ornaments and jewellery being carried as part of baggage and whether the same would qualify as smuggling as defined under the Act in Pushpa Lakhumal Tulani vs. Add. Commissioner, Customs 2006 SCC OnLine Del 1069 albeit in the context of the rules which applied then. The issue of gold ornaments and the application of the rules governing baggage regulation came to be answered in the following terms: - 19. We are of the view t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck to England by the Petitioner. To this extent, the conduct of the Petitioner appears to be consistent and bona fide. 22. 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 lakh. is not understood why a person should import jewellery of Rs. 1.27 crores and try to smuggle it in, only to sell it for Rs. 25 lakh. The benefit of doubt must, therefore, go to the Petitioner. 23. We also find from the record that out of the 28 packages that were brought into the country by the Petitioner, as many as 11 items were used jewellery. In fact photographs have been filed on record and which were apparently placed before the adjudicating authority indicating that 11 items have been used by the Petitioner over the years. 24. Insofar as the question of the original packing of the goods is concerned, we do not think that much reliance can be placed by them Respondent. There is no doubt that the jewellery was very expensive. It is common knowledge that jewellery is a deli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Baggage Rules, 1998 read with Appendix E (2) (quoted above), the respondent was not carrying any dutiable goods because the goods were the bona fide jewellery of the respondent for her personal use and was intended to be taken out of India. Also, with regard to the proximity of purchase of jewellery, all the jewellery was not purchased a few days before the departure of the respondent from UK, a large number of items had been in use for a long period. It did not make any difference whether the jewellery is new or used. There is also no relevance of the argument that since all the jewellery is to be taken out of India, it was, therefore, deliberately brought to India for taking it to Singapore. Foreign tourists are allowed to bring into India jewellery even of substantial value provided it is meant to be taken out of India with them and it is a prerequisite at the time of making endorsements on the passport. Therefore, bringing jewellery into India for taking it out with the passenger is permissible and is not liable to any import duty. 14. The learned Senior Counsel brought to our notice that even as per EXIM Code Numbers 7113 19 20 and 7113 19 30 of ITC (HS) Classification of Expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs 1.27 crores as per DRI. The High Court was right in holding that it is not the intention of the Board to verify the newness of every product which a traveller brings with him as his personal effect. It is quite 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. 16. We are of the considered opinion that in the absence of any facts on record about the nature and mode of concealment and also any finding of the lower authority that jewellery was kept in a way to evade detection on examination of the baggage, it has to be held that there was no concealment as such. It is seen that the respondent chose the green channel for clearance of her baggage. She committed no violation of law or infraction of any instruction for clearance of the baggage through the green channel as she being a tourist had no dutiable goods to declare under the Baggage Rules. The presumption that the jewellery found in her baggage cannot be considered as personal eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner, a tourist coming from Sri Lanka had on his person a gold chain which he was wearing and was not kept concealed in his body. Such being the situation, clauses (1) and (m) of Section 111 of the Act can have no application. 16. That takes me to the question whether the petitioner had imported or attempted to import or brought to Indian Customs Waters for the purpose of being imported, gold ornaments, contrary to any prohibition imposed by the Act or any other law, so as to attract clause (d) of Section 111 of the Act. Necessarily therefore the question whether the Act or any other law prohibits a tourist coming to India from wearing gold ornaments arises for consideration. The second respondent has in the impugned order held that a foreigner cannot import even a single gram of gold free of duty or on payment of duty. He does not however refer to the law which imposes the prohibition. The learned counsel appearing for the respondents was also not able to bring to my notice any provision in the Act or the Baggage Rules, 1998 to that effect. No provision in any other law to that, effect was also brought to my notice, in the absence of any prohibition imposed by the Act Or any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nied 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. 22. 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 exceeding 250 gms, alcoholic liquor or wines in excess of two litres and gold or silver in any form other than ornaments. It is evident from the Baggage Rules, 1998 that the restriction or prohibition is on the duty free clearance of gold or silver in any form other than as ornaments and not on the import as such. It is not stipulated in the Baggage Rules, 1998 that a foreign tourist who is coming to India by air cannot wear a gold chain or even his/her wedding ring. In the absence of an express provision in the Baggage Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeded further to enter the following remarks with respect to a lack of clarity in the rules itself as would be manifest from a reading of Para 30 of the report: - 30. The principle laid down in the aforesaid decisions is founded on a universal sense of fairness or reasonableness. The apprehension voiced by the Apex Court in Kartar Singh v. State of Punjab [(1994) 3 SCC 569] and by the Supreme Court of United States in jay Giaccio v. State of Pennsylvania, (1966) 382 US 399 ; has proved to be true in the instant case where, without the backing of a law which expressly prohibits a foreign tourist entering India from wearing a gold chain the respondents have, relying on a notification which has no application, confiscated the gold chain worn by the petitioner holding that he is not entitled to import. free of duty or on payment of duty even a single gram of gold. If that were the law, what fate will befall foreign tourists with gold capped teeth who arrive in India. Though the learned counsel appearing for the respondents submitted that the gold chain worn by the petitioner was of 24 carat purity, which is prohibited, no statutory stipulation to that effect was brought to my notic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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