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TMI Blog2025 (2) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... st function within the purview of the Rule making authority conferred on it by the parent Act. As the body of making rules or regulations, there is no inherent power of its own to make rules, but such power arise only from the Statute and hence, it must necessarily function within the purview of the Statute - In the present case, the Rule making body had made the Baggage Rules as if they are having inherent power of its own to make rules beyond the scope of the Statutes, and they have incorporated the word "carried on the person". In the present case, admittedly, the Rule making Authorities made the Rules by traveling beyond the scope of the Act, which would amount to ultra vires. In such case, the Statute would prevails over the Rules. When such being the case, the Statute referred only with regard to the baggage and therefore, the Rule has to be confined and read only with regard to the baggage and not with regard to the articles "carried on the person". In the judgment of the Hon'ble Apex Court rendered in Naresh Chandra Agarwal vs. Institute of Chartered Accountants of India and others [2024 (2) TMI 493 - SUPREME COURT], it has been held that '(a) The doctrine of ultr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. The petitioner worn the 10 nos. of bangles in her hands and thus, there is no secrecy or concealment. Thus, the detention of petitioner's 10 nos. of bangles is neither proper nor in accordance with law.
The respondents are directed to dispose of the petitioner's representation dated 08.02.2024 and release the goods within a period of 7 days from the date of receipt of copy of this order - petition allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... nd since the said gold was not secreted in her body in terms of the provisions of Section 101, there is no prohibition for wearing the same. In such case, the detention made by the 2nd respondent is against the Baggage Rules, 2016 and also in contravention to the provisions of Sections 79 and 101 of the Customs Act, 1962. 9. Further, he would submit that the petitioner has also made a representation on 08.02.2024 to release the bangles, which was taken from her custody on 15.01.2024 by the 2nd respondent officials under the Detention Memo No.18450 dated 15.01.2024. However, the same is yet to be disposed of. Hence, the present writ petition. 10. In reply, the learned Senior Standing counsel appearing for the respondents had filed a counter, wherein they had denied the averments made in the affidavit in general. However, there was no specific denial about the allegations made by the petitioner against the officials vide the affidavit dated 18.02.2024. 11. The respondents had admitted the fact that the petitioner worn the gold bangles at the time of arrival, however, the main concern of the respondents was that the said gold ornament exceeds the prescribed limit as per the Baggage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the form of gold jeweleries were kept in the baggage. 15. In the provisions of Rule 3(1) of the Baggage Rules, 2016, it has been stated that the used personal effects, travel souvenirs and the articles other than those mentioned in Annexure-I, up to the value of fifty thousand rupees if these are carried on the person or in the accompanied baggage of the passenger. 16. By referring the aforesaid provision, he would submit that only if any personal jeweleries were kept in baggage, the Baggage Rule will apply. However, if it is carried on the person, i.e., if the jeweleries were worn by the passenger, in such case, the Baggage Rule is beyond the scope of the provisions of Section 79 of the Customs Act, 1962. 17. The learned Senior Standing counsel appearing for the respondents had referred the judgment of the Hon'ble Division Bench of this Court rendered in CMA.No.1716 of 2020 [The Principal Commissioner or Customs vs. Ahamed Gani Natchiar] dated 01.09.2022, wherein it was held that the Baggage includes the "personal effects". 18. However, the learned counsel for the petitioner would submit that in the aforesaid order, the Division Bench has categorically mentioned that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... she arrived at Chennai International Airport, the officials had stopped her and seized her 10 nos. of bangles, weighing about 135 grams, by stating that she had carried the quantity of gold, which exceeds the limit prescribed in the Baggage Rules, 2016. 24. In this regard, an order of this Court rendered in CMA.No.1716 of 2020 has been referred by the learned Senior Standing counsel for the respondent. In the said judgment, the Hon'ble Division Bench of this Court has framed an issue as to whether the jewelery worn on the person would constitute "Baggage". 25. The Division Bench had answered the issue by plain reading of the Baggage Rules, 2016 and arrived at a conclusion that in terms of Rule 3 of the Baggage Rules, 2016, the jewelery worn by the passenger, who had arrived from abroad would be considered as "Baggage". However, in the same judgment, the Hon'ble Division Bench has held that the definition of "Baggage" under the Customs Act, 1962, and the Baggage Rules would appear to suggest that the definition of "Baggage" for the purpose of Baggage Rules, 2016 is wider than the definition of "Baggage" under Section 2(3) of the Customs Act, 1962. The relevant portion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... article and the maximum total value of all the articles which may be passed free of duty under clause (b) of sub-section (1); (c) the conditions (to be fulfilled before or after clearance) subject to which any baggage may be passed free of duty. (3) Different rules may be made under sub-section (2) for different classes of persons. 29. A reading of the above provisions would show that the proper officer may subject to any Rules made under Sub-Section (2), if any article in the baggage of a passenger or a member of the crew in respect of which the said officer is satisfied that it has been in his use for such minimum period as may be specified in the rules. 30. Thus, it states that for any article in the baggage of a passenger in respect of which the said officer is satisfied that it is for the use of the passenger or his family or is a bona fide gift or souvenir; the total value of all such articles does not exceed such limits as may be specified in the Rules. Hence, Section 79 talks about "anything in the baggage". For the purpose of carrying out the provisions of this Section, the Section 79(2) enables the Central Government to make the Rules as follows: i) The minimum p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor vehicles; " 33. As discussed by the Hon'ble Division Bench in the CMA referred supra, a reading of the above definition of "baggage" under Customs Act, 1962, and Baggage Rules, 2016, makes it clear that the definition of "baggage" under the Baggage Rules is wider than the definition of "baggage" under the Customs Act. Further, in the Rule it has been stated as follows: "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) 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: 34. From a perusal of above provision, it is clear that the Clause (b) includes the 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 accompan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . As the body of making rules or regulations, there is no inherent power of its own to make rules, but such power arise only from the Statute and hence, it must necessarily function within the purview of the Statute. 40. In the present case, the Rule making body had made the Baggage Rules as if they are having inherent power of its own to make rules beyond the scope of the Statutes, and they have incorporated the word "carried on the person" as referred above. 41. The ultra vires may arise in several ways such as :- a) there may be a simple excess of power over what is conferred by the parent Act; b) the delegated legislation may be inconsistent with the provisions of the parent Act; c) there may be non-complaince with the procedural requirement as laid down in the parent Act. In all the above situation, it is the function of the Court is to keep all the Authorities within the confines of the law by supplying the doctrine of ultra vires. 42. In the present case, admittedly, the Rule making Authorities made the Rules by traveling beyond the scope of the Act, which would amount to ultra vires. In such case, the Statute would prevails over the Rules. When such being the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that this Rule must yield to Section 80 of the Act. We do not find any substance in this submission. 45. In the judgment of the Hon'ble Apex Court rendered in State of Tamil Nadu and Another vs. P.Krishnamurthy and others reported in (2006) 4 SCC 517, it has been held as follows: 16. The court considering the validity of a subordinate Legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate Legislation conforms to the parent Statute. Where a Rule is directly inconsistent with a mandatory provision of the Statute, then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or non- conformity of the Rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the Parent Act, the court should proceed with caution before declaring invalidity. 17. In Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India [1985 (1) SCC 641], this Court referred to several grounds on which a subordinate legislation can be challenged as follows: "75. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to give authority to make such rules; they are unreasonable and ultra vires": per Lord Russel of Killowen, C.J. in Kruse v. Johnson (1898) 2 QB 91." 20. In St. Johns Teachers Training Institute vs. Regional Director, NCTE [2003 (3) SCC 321], this Court explained the scope and purpose of delegated legislation thus : "A regulation is a rule or order prescribed by a superior for the management of some business and implies a rule for general course of action. Rules and regulations are all comprised in delegated legislations. The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. Rules cannot be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up details. The legislature may, after laying down the legislative policy confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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