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TMI Blog2025 (4) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant who arrived at Chennai Airport from Dubai by Air India Flight No. AI 906 dated 12.6.2023 and had opted for green channel at the exit of the arrival hall of the International Terminal of Chennai Anna International Airport. On examination of the baggage it was not found to contain any incriminating goods or documents except her personal effects but on search of the 'person', one chain, two anklets and two bangles were found concealed in her undergarments and the same were recovered. Suspecting the recovered yellow metals to be gold, gold appraiser was called and based on his examination, it was found that the yellow metals were 24 karat gold totally weighing 598 grams and valued at Rs. 1,37,108/-. 1.2 Defect Appeal No. 40295/2025, Abdul Salam Brief facts of the case are that on 12.2.2024, the appellant who arrived by Flight No. 6E-179 at Domestic Terminal of Chennai Airport from Mumbai was apprehended by the officers of AIU. On examination of the person/ baggage, the officers found three metal coins of gold of 40 gms (Rs. 2,20,956) and 30 grams (Rs. 1,65,717) and iphone 15 pro max and iphone 15 pro 258 GB totally valued at Rs. 8,44,534/- in his baggage. Show Cause Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertained. They have also filed a written submission in this regard. 3. We find that revenue has raised the issue of jurisdiction, which can be raised at any stage of the proceedings. Jurisdiction refers to the authority or power of a court or tribunal to hear and decide a particular case or type of dispute. It cannot be conferred by consent of parties to the dispute and hence a challenge to jurisdiction of an Authority, needs to be examined at the threshold because any order / judgment passed by an Authority without jurisdiction would be 'coram non judice' or 'before a court lacking jurisdiction' and would be considered void or a nullity which is non est and of no legal effect. Accordingly, we proceed to examine the issue. We notice that while in Defect Appeal No. 42151/2024, in the case of Noorul Ayin the passenger along with his baggage were examined at the International Airport on arrival from Dubai. In the other three cases the passengers were allegedly intercepted at the Domestic Airport at Chennai on arrival from Mumbai when the aircraft was on a domestic run. 4. We have heard revenue in all the four cases and the Ld. Counsel Shri J. Sirajudeen on behalf of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession was not part of 'baggage' but from 'her person'. The judgment of the jurisdictional high court in the case of Principal Commissioner of Customs Vs Ahmed Ghani Nachiar reported in 2024 (15) Centax 177 (Mad.) should not be applied for the reason that the Tribunal in the case of Vicky Asrani in Final Order No. 87527 of 2024 of the CESTAT, West Zonal Bench dated 19.12.2024 has distinguished the aforesaid judgment and proceeds to hold that this Tribunal would still have the jurisdiction to decide on the confiscability or otherwise of gold jewellery brought by a person. The Hon'ble High Court Madras in recent judgment in the case of Ms. Sabeena Mohammed Maideen vs The Principal Commissioner Of Customs [W.P No.5247 of 2024 dated 31.01.2025], held that jewellery worn by the passenger will not fall within provisions of baggage rules, 2016. Though the aforesaid order of the learned single judge of the Hon'ble High Court of Madras has been stayed by the Division bench of the Hon'ble High Court of Madras in W.A No.411 of 2025, stay of operation of order does not efface the ratio of the said order. Therefore, he prayed that this Hon'ble Tribunal may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellery' that led to exclusion from 'baggage' and proceedings under section 124 of the Customs Act, 1962, for determination of rate of duty and for valuation, which are excluded from the purview of the revisionary jurisdiction of Government of India and, thereby, lies within the appellate structure that embraces the Tribunal." It further held that, "On perusal of the Rules pertaining to importation of jewellery, as baggage by an arriving passenger, it is seen that the quantity in the present dispute is far in excess of that allowed free of duty on import into India. Therefore, the passenger has failed to comply with declaration requirements and confiscation under section 111(1) of Customs Act, 1962 is not misplaced." 10. Revenue took the issue of jurisdiction in appeal before the Hon'ble High Court of Madras. The High Court in its judgment in THE PRINCIPAL COMMISSIONER OR CUSTOMS (AIR PORT) VS AHAMED GANI NATCHIAR [2022 (10) TMI 100 - MADRAS HIGH COURT], held: 12. Though the above judgment of the Kerala High Court does indicate that "Baggage" would not include old ornaments worn by the passenger. However, the above judgment was rendered in the context of Baggage Rules, 1998. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs Nandkishore Ganesh Joshi Vs. Commr. Municipal Corporation Kalyan, AIR 2005 SC 34." It thus seems that the appellants may be right in its submission that the issue relates to Baggage falls within the exclusion carved out in terms of the proviso to Section 129A (1) of the Customs Act, 1962 and thus the order of the Tribunal is set aside as bad in law. However, liberty is granted to the respondents to avail statutory remedy by way of a revision before the appropriate authority if so advised within a period of 8 weeks from the date of receipt of a copy of this order. If such revision is filed by the respondents within the time line set out above the Revisional Authority shall examine the matter and pass order on merits. 13. As we have decided that the Tribunal may not have jurisdiction to entertain the appeal in respect of an order relating to import of baggage, as a consequence W.P. No. 4811 of 2021 praying for disposal of her jewellery which was premised on the order of the Tribunal which we have set aside appears to have become infructuous. However liberty is granted in the event ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ara 13 above related to the jurisdiction of the Tribunal to decide any appeal in respect of an order passed by the Commissioner (Appeals) under Section 128 A of the Customs Act, 1962 relating to any goods imported or exported as "Baggage" and that "Baggage" under the 2016 Rules includes jewellery worn on the person. 12. In DIRECTORATE OF REVENUE INTELLIGENCE Vs PUSPHA L. TOLANI [2024 (390) E.L.T. 15 (S.C.)], decided by the Hon'ble Supreme Court and cited by the appellant in their favour, the passenger on arrival in India opted to walk through the 'Green Channel'. She was intercepted and on an examination of her baggage, 28 packages containing 44 items of jewellery worth Rs. 1.27 crores were recovered from two hand bags. The Hon'ble Supreme Court held that the respondent did not violate the provisions of Section 77 of the Act since the necessary declaration was made by the respondent by passing through the Green Channel. This is itself a declaration that a passenger had no dutiable or prohibited articles and is devised with a view to facilitate expeditious and smooth clearance of the passenger. After a harmonious reading of Rule 7 of the Baggage Rules, 1998 read with Appendix E (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the position as on dated of passing of order which has been quashed. Stay would only mean that the order would not be operative from the date of passing of stay order and does not mean that such order has been wiped out from existence. 14. We have examined the matter. We find that the stay granted by the Division Bench in W.A. No. 411 of 2025, dated 14.02.2025 [The Principal Commissioner of Customs, Chennai Vs Ms. Sabeena Mohammed Maideen], states that the Court is convinced that there is a prima facie case in favour of the appellant (revenue). The issue concerns the constitutional vires of the provisions of the Baggage Rules, 2016 framed under the Customs Act, 1962 and the Hon'ble Court was inclined to grant stay of operation of the order passed in W.P. No. 5247 of 2024. The issue of the effect of a 'stay' was examined by the Hon'ble Supreme Court in Consolidated Coffee Ltd., M/s. v. Agricultural Income-tax Officer, Madikeri [AIR 2000 SC 3731], wherein it was held as under; 7. As has been pointed out by this Court in Kanoria Chemicals and Industries Ltd. v. U.P. State Electricity Board, (1997) 5 SCC 772, an order of stay may be made in different ways but the effect there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld 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. (emphasis added) From the judgment it appears there is by and large a convergence of views among the Constitutional Courts on the applicability of the Baggage Rules 2016, to gold jewellery found on an individual or caried in his/ her baggage while arriving in India from abroad. 16. We also feel that established procedures and practices that have been in place since the Finance Act of 1984, should not be changed suddenly or else it would cause immense difficulty to appellants especially in the case of passengers. This is more so when, in a series of judgments of this Tribunal, some of which were cited by Revenue above, appeal on disputes related to the import of 'baggage' have been left to the Revisionary Authorities to resolve. In other words, it would be a wise judicial policy and practice not to take a different view, from benches of co-equal strength, in tax matters which are governed by an all India statute. More so, when a need for the special procedure was felt necessary by the legislature and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween their importation and the time when it exits the international airport upon clearance and loses its presumtive identity as 'baggage'. Hence once the luggage / bag which accompanies an individual arriving from a domestic airport in India, during the aircrafts domestic run, is intercepted by the officers at the Chennai domestic airport, there cannot be a presumption that it is covered under the Customs Act, 1962 and to which the Baggage Rules, 2016 can automatically apply. Imported consumer goods are freely available within the country and cannot be presumed to be goods improperly imported or to be smuggled goods if found on the person or in the luggage of individuals arriving at domestic airports, while the flight is on a domestic run. As stated by the Apex Court in Suresh Budharmal Kalani Vs State of Maharashtra (1998 (7) SCC 337) "A presumption can be drawn only from facts and not from other presumptions by a process of probable and logical reasoning". Hence the articles allegedly found / recovered from an individual's luggage or from his person, in the circumstances, cannot be presumed to be part of 'baggage' as defined under the Customs Act 1962. The onus of proof would be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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