9911796707
TMI Blog2025 (4) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court today. I. Background 3. The present petition is the lead matter wherein vide order dated 13th January, 2025, this Court had noticed that various travellers, tourists, Indian citizens coming back from foreign countries were being intercepted and various items which they were wearing including jewellery etc., were being detained. The Court had then considered the Baggage Rules, 2016 (hereinafter the "Baggage Rules") and the Indian Customs Declaration Form as also the Guide for Travellers, prepared by the Central Board of Indirect Taxes & Customs (hereinafter "CBIC") and had observed that the Baggage Rules are quite outdated and archaic considering the increase in price of gold in the last several years. The Baggage Rules date back to 2016 i.e., the Rules are more than nine years old and considering the present market realities, the Baggage Rules need a re-look. Accordingly, the Court had then passed the following directions:- "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. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (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). 6. Further, in Amit Kumar vs. Commissioner of Customs, 2025:DHC:751-DB, the Court had considered the validity of a preprinted waiver form, being relied upon by the Customs Department, by which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 18. At this stage, it would be apposite to refer to the judgement of the Madras High Court in Thanushika vs. The Principal Commissioner of Customs (Chennai), W.P. No. 5005/2024 (decided on 31st January, 2025) wherein the High Court was dealing with a case where the gold jewellery of a Sri Lankan tourist was seized by the Customs Department. The High Court after analysing the various provisions of the Act and the Baggage Rules has held that the said Rules would only apply to baggage and would not extend to any article "carried on the person" as mentioned in Rule 3 of the Baggage Rules. The relevant portion of the said judgement is extracted hereinunder: "50. 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 ..... he scope of the Statutes, and they have incorporated the word "carried on the person" as referred above. * * * * 58. 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" * * * * 62. In the above cases, the Court had held that a Rule Making Authority has to make the Rules within the scope of the parent Act and no Rules shall exceed beyond the scope of the parent Act since it would amount to ultra vires. Thus, in the present case, the Baggage Rule, 2016 will apply only to the baggage and the Rule made to the extent that the article "carried on the person" will not include baggage, which was in excess of powers conferred by the Rule making Authority and would amount to ultra vires. Therefore, the jewellery worn in person will not come under the purview of baggage. 63. Since this Court has held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Act. xxx xxx 33. At this stage, it is noted that this Court has in Qamar Jahan v. Union of India, Represented by Secretary, Ministry of Finance & Ors. 2025:DHC:174-DB has directed the Central Board of Indirect Taxes and Customs (hereinafter "CBIC") to reconsider the Baggage Rules in respect of the confiscation of goods of tourists. 34. Since, the Court has made clear that the practice of making tourists sign undertaking in a standard form waiving the show cause notice and personal hearing is contrary to the provisions of Section 124 of the Act, hereinafter, the Customs Department is directed to discontinue the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceforth, the Court is informed that the following particulars shall also be obtained at the time of issuing the detention receipts so that communication with the concerned passenger becomes easy for the Customs Department. The said details are as under:- a) Details of the passenger. b) Phone number. c) Whatsapp number. d) Email address. e) Complete residential address. ii. In addition, the detention receipt would also have the number of items seized and the net weight of the said items. iii. On the detention receipt, the time and date of detaining the goods shall be mentioned. iv. The names and signatures of the passenger shall be obtained on the detention receipt. v. The names and signatures of the concerned official from the Customs Department shall also be clearly mentioned with the designation on the detention receipt. vi. The mechanism is also being put in place to take images of the items which are seized and if the passenger requests for the same, a copy thereof will also be furnished. Oral SCN, waiver of SCN and personal hearing 14. Insofar as oral SCN and waiver of SCN and personal hearing are concerned, it is submitted that under Section 124 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so uploading on the Directorate General of Foreign Trade (DGFT) common portal can henceforth be given effect to." 18. In compliance with the above directions, once the adjudicating order is passed, the same shall be communicated on the email address of the passenger and on Whatsapp number, with a clear note that the passenger is free to challenge the same within 90 days (60 days + 30 days). The email address of the concerned Appellate Forum shall also be provided in the adjudicating order communicated to the passenger. Detention of personal effects qua travellers of foreign origin 19. Insofar as travellers of foreign origin, whether foreign passport holders or foreign residence permit holders, are concerned, in respect of personal effects including jewellery, so long as the same are declared in the 'Red Channel' and the said travellers undertake to re-export the same, the said personal effects shall not be detained. IV. Directions 20. Since the CBIC and Customs Department is now seeking further time to amend the Baggage Rules and to place the same before this Court, a sensitisation initiative shall be carried out by the Customs Department to all Customs officials. The Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
