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TMI Blog2025 (1) TMI 1467X X X X Extracts X X X X X X X X Extracts X X X X ..... nt from an Indian tourist. The Court considered the ambit of 'personal effects' vis-à-vis jewellery under the Baggage Rules, in effect from time to time.
A conspectus of the above decisions and provisions would lead to the conclusion that jewellery that is bona fide in personal use by the tourist would not be excluded from the ambit of personal effects as defined under the Baggage Rules. Further, the Department is required to make a distinction between 'jewellery' and 'personal jewellery' while considering seizure of items for being in violation of the Baggage Rules.
The Baggage Rules have to be interpreted in a manner that does not lead to unnecessary burden upon the tourist, being either of Indian or foreign origin. Accordingly, the term "personal effects" cannot exclude personal jewellery or ornaments, as is clear from a harmonious reading of the Baggage Rules.
Conclusion - i) The jewellery of the Petitioner which has been seized deserves to be released. Let the same be released within a period of two weeks from today to the Petitioner.
Petition allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... om the ambit of 'personal effects'. Mr. Jha, ld. Counsel for the Department, submits that in terms of the Baggage Rules, 2016 (hereinafter "Baggage Rules"), since there was an exclusion of jewellery, whenever any foreign tourist carries jewellery, the same ought to be declared. Analysis & Findings Jewellery vis-à-vis personal effects under the Baggage Rules, 2016 9. The present case would be governed by the Baggage Rules that came into force on 1st April, 2016, passed under Section 79 of the Customs Act, 1962 (hereinafter "the Act"). The relevant provisions of the Baggage Rules qua personal effects and jewellery are reproduced hereinunder for ease of reference: "2(vi) "Personal effects" means things required for satisfying daily necessities but does not include jewellery. * * * * 3. Passenger arriving 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndirect Taxes & Customs (hereinafter "CBIC"), wherein in respect of jewellery, it is stated as under:- "Question 6. Who can bring Jewellery as baggage, free of duty? Ans. An Indian passenger who has been residing abroad for over one year is allowed to bring jewellery, free of duty in his bona fide baggage upto 20 grams with a value cap of Rs. 50,000/- (in case of a gentleman passenger) or up to 40 grams with a value cap of Rs. 1,00,000/- (in the case of a lady passenger)." 13. The Indian Customs Declaration Form (hereinafter "Declaration Form") issued by the CBIC as part of the Guide for Travellers has also been perused by the Court, which would show that gold and gold jewellery is being treated as prohibited articles where the same is beyond the prescribed limits under Rule 5 of Baggage Rules, including gold bullion. 14. The Supreme Court in Pushpa Lekhumal Tolani (supra), has considered whether jewellery being carried by a tourist as part of her baggage would qualify as smuggling under the Act read with the Baggage Rules, 1998, that was in force during the relevant period. The Supreme Court clearly holds that it is not permissible to completely exclude jewellery from the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime were in Indonesia and she had plans of proceeding to Indonesia. Some of the jewellery items purchased by the respondent were for her personal use and some were intended to be left with her parents in Indonesia. The High Court has rightly held that when she brought jewellery of a huge amount into the country, the respondent did not seem to have the intention to smuggle the jewellery into India and to sell it off. Even on the examination of the jewellery for costing purposes, it has come out to be of Rs 25 lakhs and not 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. Conclusion: 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 findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) as well as 4 (b) employ the phrase "used personal effects" and which expression existed even in the prior versions of the rules and have been noticed hereinabove. 14. 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' per se. 15. The expression 'jewellery' as it appears in Rule 2(vi) would thus have to be construed as inclusive of articles newly acquired as opposed to used personal articles of jewellery which may have been borne on the person while exiting the country or carried in its baggage. Thus, personal jewellery which is not found to have been acquired on an overseas trip and was always a used personal effect of the passenger would no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nexure-I, it speaks of gold or silver in any form other than ornaments. The chain and the kada which were found on the person of the petitioner would undoubtedly fall in the category of jewellery and ornaments. Clause 5 of Annexure-I would therefore not sustain the seizure of the articles in question. 5. While learned counsel for the respondent had also drawn our attention to Rule 5 of the Baggage Rules, we note that the same pertains to a passenger who is returning to India after having resided abroad for more than one year. That would clearly not apply to the petitioner here who is undisputedly a foreign national. Rule 5 in any case appears to be relating to an "eligible passenger" and which pertain to an Indian national upon his return to the country after having lived abroad for the period prescribed." 19. Thus, in Nathan Narayansamy (supra), the Coordinate Bench of this Court has clearly held that the Baggage Rules would not have any application to foreign nationals. Further, the predecessor Bench of this Court in Farida Aliyeva (supra) while relying upon with approval on the decision in Nathan Narayansamy (supra), directed release of jewellery seized from a touri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for passengers not having any dutiable or prohibited goods. Moreover, the Court is of the view that the Baggage Rules may also require a re-look, considering the market rate of gold at present, where forty grams of gold would be costing much more the value cap of Rs. 1,00,000/- prescribed under Rule 5 of Baggage Rules. With the maximum limit of Rs. 1,00,000/-, the gold that could be purchased may only be around 15 grams. 14. The ld. Counsel for the Customs Department also points out that there are many cases, wherein it is seen that travellers are undertaking frequent travel almost every week or two weeks, with the sole intention to smuggle gold into India. 15. While, there is no doubt that any illegal smuggling of gold deserves to be curbed, at the same time, bona-fidely and genuine tourists/travellers, including people from Indian Origin such as the OCI Cardholders, PIOs etc., could be travelling for social engagements in India or social events such as marriages etc., with gold, which could be of a much higher value than the permissible limits. Such tourists and travellers ought not to be expected to file detailed declarations, which could make the entire process of entering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by this Court in Qamar Jahan (supra) to the Central Board of Indirect Taxes (hereinafter "CBIC") to reconsider the Baggage Rules, the Court deems fit to pass the following directions for the interim period till the CBIC has reconsidered the Baggage Rules: i. Detention receipt should contain contact details of the tourist including email address and mobile/ WhatsApp number; ii. Coloured images of the gold ornaments/ jewellery detained from the tourist should be attached to the detention receipt; iii. Copy of the said images should be provided to the concerned tourist and the same shall also be retained on record of the Customs Department. 29. The above directions shall be followed henceforth by the Customs Department in all cases where jewellery is seized or detained from tourists of either Indian or foreign origin. 30. Let the said directions be also taken into consideration by the Chairman, CBIC while reconsidering the Baggage Rules pursuant to the directions passed by this Court in Qamar Jahan (surpa). 31. Registry is directed to communicate this order to the OSD (Legal), CBIC through email ([email protected]) for necessary information and compliance. Let Mr. Anurag Oj ..... X X X X Extracts X X X X X X X X Extracts X X X X
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