9911796707
TMI Blog2025 (2) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 3. The petitioner flew from Dubai on 09.08.2015 along with two others namely Smt.Deepa Sathishkumar and Smt.Ekambaram Devi. As far as the petitioner is concerned, the petitioner was found wearing one gold chain and eight gold bangles totally weighing about 791 grams and valued at Rs. 19,89,365/-. 4. The case of the Department is that the petitioner attempted to walk through the Green Channel without declaring the gold jewellery to the requirements of the Customs Act, 1962 and the rules and thus, by an Order dated 23.11.2015, the Additional Commissioner of Customs vide Order-in- Original No.356/2015-2016-AIRPORT made in F.No.O.S.No.793/2015-AIR, ordered absolute confiscation of the jewellery items and imposed a penalty of Rs. 2,00,000/- on Smt.Ekambaram Devi under Section 112(a) of the Customs Act, 1962. 5. It is submitted that the petitioner's appeal before the Appellate Commissioner was also rejected and therefore, the petitioner preferred revision before the fourth respondent under Section 129DD of the Customs Act, 1962, which has now culminated in the impugned order rejecting the prayer of the petitioner. Operative portion of the impugned order reads as under:- "8. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and Regulation) Act, 1992, read with Customs Notification No.171/94, dated 30-9-94 (as amended). The Applicants did not fulfill the basic condition of eligibility of staying abroad for a minimum period of six months. Thus they are not eligible passengers for the import of gold as they did not satisfy the conditions. If the Applicants were not intercepted they would have smuggled the gold without payment of Customs duty and without any accountal of the same. 10. The Applicants were well aware that gold is not only a dutiable item and needs to suffer customs duty for its import into India, but gold is also subjected to certain restriction with conditions and eligible agencies/persons can only bring the same into India. The manner of opting for the green channel, and making their way to the exit, clearly indicates that they were planning to escape the payment of customs duty and smuggle the gold into India. The impugned gold was discovered only after the Applicants were intercepted and subjected to a search. The Applicants have pleaded for setting aside the Appellate Order and have requested for redemption of the gold. The impugned gold has been absolutely confiscated. Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the various High Courts:- i. A.Krishnamoorthy Vs. The Commissioner of Customs, Trichy and others in W.P(MD)Nos.3456, 3460, 3469 & 3557 of 2022 dated 30.03.2022. ii. Chandrasegaram Vijayasundaram Vs. Principal Commissioner (Revision Application) and Ex-Officio Additional Secretary to the Government of India, Mumbai, (2022) 1 Centax 62 (Mad.) iii. Thirumurugan Durairaj Vs. The Principal Commissioner & Ex- Officio Additional Secretary to the Government of India, Mumbai in W.P(MD)No.26438 of 2019 dated 14.06.2022. iv. Rayavarapu Sri Devi Vs. The Principal Commissioner of Customs (Adjudication-Air), Chennai I Commissionerate, Chennai and others in W.P.No.6734 of 2022 dated 19.02.2024. v. Hargovind Das K.Joshi Vs. Collector of Customs, 1992 (61) E.L.T.172 (S.C.) vi. Neyveli Lignite Corporation Limited Vs. Union of India, 2009 (242) E.L.T.487 (Mad.) vii. Shaik Jamal Basha Vs. Government of India, 1997 (91) E.L.T.277 (A.P.) viii. T.Elavarasan Vs. Commissioner of Customs (Airport), Chennai, 2011 (266) E.L.T.167 (Mad.) ix. Palaniappan Vs. Principal Commissioner of Customs, Chennai-I, 2016 (339) E.L.T.367 (Mad.) x. Union of India Vs. Dhanak M.Ramji, 2009 (248) E.L.T.127 (B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this Article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction. 24. Upon a review of decided cases and a survey of the occasions, wherein the High Courts have exercised jurisdiction to command a wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the High Court of Andhra Pradesh. Any clarification will have to be furnished only by these Officers from Andhra Pradesh of the respondents herein. Merely because, the first respondent also has an office in Chennai Ipso facto would not entitle to the petitioner to invoke the jurisdiction of this Court under Article 226(2) of the Constitution of India. The writ petition is therefore liable to be dismissed in the light of the above discussion." 15. Learned Senior Standing Counsel has also drawn attention to the recent decision of the Division Bench of the Delhi High Court in Nidhi Kapoor Vs. Principal Commissioner and Additional Secretary to the Government of India and others, W.P.(C) Nos.8902 of 2021 etc batch dated 21.08.2023. He drew attention to Paragraph 74 of the said decision of the Delhi High Court. It reads as under:- "74. Therefore, without further ado, we have no hesitation in holding that the discretionary powers were properly exercised by the Adjudicating Authority under Section 125 of the Act in passing the order-in-original dated 16 September 2016. The plea of the petitioner that she had been gifted the gold items of such huge quantity weighing about 3100 grams w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) of the Customs Act, 1962 and the petitioners therein are not "eligible passengers" within the meaning of Notification No.12/2012-Cus dated 17.03.2012. 22. It is submitted that the Division Bench of the Delhi High Court has also dealt with Baggage Rules, 2016 as amended with effect from 01.04.2016. 23. Learned Senior Standing Counsel for the first to third respondents has drawn attention to various paragraphs of two views of the Judges of the Delhi High Court, which are re-produced below:- "32. A bare perusal of section 2(33) of the Act would show that "prohibited goods" are defined as goods, the import or export of which is prohibited by virtue of any prohibition under the Act or any other law for the time being in force. Though at first blush there appears to be a deviation to the effect that it does not include any goods which are not prohibited and such goods in respect of which certain conditions are provided thereby permitting import/export, however, there is more to the legal text than what meets the eyes. 34. A meaningful perusal of section 11 of the Act would show that the Central Government by notification may provide for goods the import or export of which is pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lieu of confiscation of goods is imposed under sub-section (1) the owner of such goods or the person referred to in sub-section (1) shall, in addition, be liable to any duty and charges payable in respect of such goods." 38. During the course of arguments, much had been urged at the behest of the petitioners that if the importation or exportation of the goods is prohibited under this Act or any other law for the time being in force, the adjudicating officer may allow or afford an option to pay such fine in lieu of confiscation, as the officer thinks fit; whereas in case of any other non- prohibited goods, an option "shall be" mandatorily given to the owner of the goods or where such owner is not known, the person from whom possession or custody of such goods had been seized, an option to pay fine or penalty in lieu of confiscation. 39. At the outset, there is indeed no notification issued by the Central Government declaring importation of gold in the category of "prohibited" goods such as narcotics, armoured cars, arms and ammunition, endangered species, live stock, etc. However, that alone is no closure to the issue. As the instant writ petitions involve individual passengers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Foreign Trade Act and section 125 of the Customs Act will therefore not detract from the redemption of such restricted goods imported without authorization upon payment of the market value. There will exist a fundamental distinction between what is prohibited and what is restricted. We, therefore, find no error with the conclusion of the Tribunal affirmed by the High Court that the respondent was entitled to redemption of the consignment on payment of the market price at the reassessed value by the customs authorities with fine under section 112(a) of the Customs Act, 1962." 58. ..... 74. Therefore, without further ado, we have no hesitation in holding that the discretionary powers were properly exercised by the adjudicating authority under section 125 of the Act in passing the order-in-original dated September 16, 2016. The plea of the petitioner that she had been gifted the gold items of such huge quantity weighing about 3100 grams was considered and it was held that deed was neither bearing any acceptance nor had any legal sanctity. Therefore, no illegality, perversity or incorrect approach is decipherable from the impugned order dated January 2, 2020 passed by the learned r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification issued either under section 11 of the Act or section 3(2) of the FTDR relating to the import of gold. 122. To enable us to have a broad overview of the statutory scheme which prevails, our attention was invited firstly to the Baggage Rules, 2016. It may however be noted that rules 3, 4 and 5 essentially deal with the permissible limit of gold and jewellery which may be carried or brought in by passengers arriving from different countries including foreigners. Those Rules essentially deal with the limits up to which such articles may be carried by passengers. We were further informed that subsequently the Central Board of Excise and Customs [ CBEC.] has promulgated the Customs Baggage Declarations Regulations, 2013 and which embodies the Customs Declaration Form specifically requiring passengers to make an appropriate declaration with respect to gold jewellery being carried above the free allowance as well as gold bullion. The duty free allowance is also specified in those Regulations." 24. The facts are not in dispute. In this case, the petitioner has travelled to Dubai on 05.08.2015 and returned to India on 08.08.2015 carrying 791 grams of gold jewellery, which accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e passenger" as defined in the said notification. The expression "eligible passenger" has been defined in Condition No.35 to Annexure to Notification No.12/2012-Customs dated 17.03.2012 [General Exemption No.165 in the Customs Manual]. It reads as under:- "For the purposes of this notification, "eligible passenger" means a passenger of Indian origin or a passenger holding a valid passport, issued under the Passports Act, 1967 (15 of 1967), who is coming to India after a period of not less than six months of stay abroad; and short visits, if any, made by the eligible passenger during the aforesaid period of six months shall be ignored if the total duration of stay on such visits does not exceed thirty days and such passenger has not availed of the exemption under this notification or under the notification being superseded at any time of such short visits." 28. In this case, none of the petitioner are "eligible passengers" within the meaning of the Explanation 2 to Condition No.35 to Notification No.12/2012-Customs dated 17.03.2012. Therefore, imports rather attempt to smuggle gold ornaments by these petitioners are not in the contemplation of the exemption under Sl.No.321 to No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less. i. Used personal effects, excluding jewellery, required for satisfying daily necessities of life. ii. Articles other than those mentioned in Annex.I up to a value of Rs. 12,000/- if these are carried on the person or in the accompanied baggage of the passenger. (c) All passengers up to 10 years of age and returning after say abroad of more than three days. i. Used personal effects, excluding jewellery, required for satisfying daily necessities of life. ii. Articles other than those mentioned in Annex.I up to a value of Rs. 6,000/- if these are carried on the person or in the accompanied baggage of the passenger. (d) All passengers up to 10 years of age and returning after stay abroad of three days or less. i. Used personal effects, excluding jewellery, required for satisfying daily necessities of life. ii. Articles other than those mentioned in Annex.I up to 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. 35. In fact, Appendix A to F to the Baggage Rules, 1998, have framed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 125 of the Customs Act, 1962 taking note of the value of the gold that was attempted to be smuggled by these petitioners. 47. This exercise shall be carried out by the 2nd respondent Joint Commissioner of Customs within a period of 8 weeks from the date of receipt of a copy of this order. 48. If required, the respective petitioners shall be heard before final orders are passed. 49. These Writ Petitions are allowed. No costs. Connected Writ Miscellaneous Petitions are closed." 26. Therefore, the Impugned Order passed by the fourth respondent affirming the Orders of the lower Authority is liable to be interfered with. The objection with the Order passed by the fourth respondent sitting at Mumbai also cannot be countenanced as the Order-in-Original No.356/2015-2016-AIRPORT made in F.No.O.S.No.793/2015-AIR dated 23.11.2015 passed by the second respondent was the subject matter of the Appeal before the third respondent, whereby, the third respondent vide Order-in-Appeal C.Cus-I Nos.263 to 265 of 2016 dated 27.06.2016 confirmed the view of the second respondent. 27. The cause of action has arisen within the jurisdiction of this Court. Therefore, the objection of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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