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TMI Blog2025 (3) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... as only served with the impugned Order-in-Original dated 13th November, 2024 without proper hearing being given to him. The ld. Counsel for the Petitioner submits that the chain was the Petitioner's personal jewellery. He has placed on record photographs which show that he is wearing the gold chain. 5. None appears for the Respondent/Department, despite advance copy having been served at email ids: [email protected], [email protected] and mobile number: 9810274452, 9871863446, 6. It is noticed that in a large number of customs matters, the Counsels are either not appearing or appear without proper instructions. In cases of non-appearance, the Court is compelled to request Standing Counsels present in Court to accept notice. This reflects a clear lack of coordination between the Department and the learned panel of Standing Counsels. Such a practice is highly undesirable and leads to gross wastage of judicial time. 7. Accordingly, this Court deems it appropriate to proceed with passing of the order on merits. 8. As per the impugned order, the Petitioner has been permitted to redeem the gold chain upon the payment of Rs. 25,000/- for re-export and penalty has been imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the notice referred to in clause (a) and the representation referred to in clause (b) may, at the request of the person concerned be oral. Provided further that notwithstanding issue of notice under this section, the proper officer may issue a supplementary notice under such circumstances and in such manner as may be prescribed." 25. A perusal of the above Section would show that the principles of natural justice have to be followed by the Customs Department before detention of the goods. The Section provides a three-fold requirement: i) a notice in writing informing the grounds of confiscation; ii) An opportunity of making a representation in writing against the said grounds of confiscation; iii) A reasonable opportunity of personal hearing. 26. In terms of proviso to the said Section, the Customs Authority may issue an oral show cause notice to the tourist in lieu of a written show cause notice at the request of the said tourist. However, in the opinion of the Court the undertaking in a standard form as relied upon by the Customs Department waiving the issuance of show cause notice and personal hearing would not satisfy the requirements of Section 124 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a penalty; (b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein; and (c) is given a reasonable opportunity of being heard in the matter: Provided that the notice referred to in clause (a) and the representation referred to in clause (b) may, at the request of the person concerned be oral. [Provided further that notwithstanding issue of notice under this section, the proper officer may issue a supplementary notice under such circumstances and in such manner as may be prescribed.]" 16. A perusal of Section 124 of the Act along with the alleged waiver which is relied upon would show that the oral SCN cannot be deemed to have been served in this manner as is being alleged by the Department. If an oral SCN waiver has to be agreed to by the person concerned, the same ought to be in the form of a proper declaration, consciously signed by the person concerned. Even then, an opportunity of hearing ought to be afforded, inasmuch as, the person concerned cannot be condemned unheard in these matters. Printed waivers of this n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , is not sustainable in law. The Order-in-Original dated 29th November, 2024 is accordingly set-aside"" 12. Secondly, the impugned Order-in-Original has detained the gold chain on the ground that the Petitioner is an 'ineligible' passenger. The order passed by the authority is set out below: "xxx xxx xxx ii) I declare the passenger, Rahul V. Remesh, is an "ineligible Passenger" for the purpose of the Notification No. 50/2017-Customs dated 30.06.2017 (as amended) read with Baggage Rules, 2016 (as amended)." 13. However, this Court has now pronounced several orders/judgments, following various judgments of the Supreme Court and this Court, wherein it has been held clearly that if the gold items seized are personal jewellery, the same would not be liable to be confiscated. The few orders/judgments passed by this Court in this regard are as under: * Nathan Narayanswamy v. Commissioner of Customs, [Delhi High Court, W.P.(C) 6855/2023 dated 15th September, 2023] * Farida Aliyeva v. Commissioner of Customs, 2024:DHC:9533-DB. 14. The operative portion of Nathan Narayanswamy (Supra) is read as under: "2. The petitioner who holds a Malaysian passport issued on 02 May 2021 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n passenger, or forty grams with a value cap of one lakh rupees if brought by a lady passenger. xxx xxx xxx ANNEXURE-I (See Rules 3, 4 and 6) 1. Fire arms. 2. Cartridges of fire arms exceeding 50. 3. Cigarettes exceeding 100 sticks or cigars exceeding 25 or tobacco exceeding 125 gms. 4. Alcoholic liquor or wines in excess of two litres. 5. Gold or silver in any form other than ornaments. 6. Flat Panel (Liquid Crystal Display/Light-Emitting Diode/ Plasma) television." 4. Undisputedly, and since the petitioner held a foreign passport, it would be the Proviso to Rule 3 alone which would apply. In terms of the said Proviso, a tourist of foreign origin is permitted clearance of duty free articles in his bona fide baggage, and the articles and the limits/restrictions of those articles which are not allowed duty free are mentioned in Annexure-I. As we read Entry 5 in Annexure-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 quest ..... 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