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TMI Blog2008 (3) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... TL/2000 dated 8-12-2000. 3. The appellant had also obtained requisite licences from the United States of America for acquiring and possessing the three firearms possessed by him. When he decided to transfer his residence to India, he consulted the Indian Consulate in San Francisco, USA regarding the firearms in question and was told that he could take the arms back to India as "Baggage", subject to the condition that he has valid arms licences from the Indian Government. The appellant having already obtained valid licences from the Indian Government brought with himself the three licenced firearms mentioned hereinabove. 4. On 1-10-2000, on the appellant's arrival at the Indira Gandhi International Airport, New Delhi, however, he was told that he would be permitted to take only one firearm under the Transfer of Residence Rules. The appellant was further told by the customs officials that with regard to the two other firearms, he will have to obtain import licences from the Director General of Foreign Trade. The reasons assigned for detention of the firearms was : "Detained for clearance as per Rules". 5. On 16th February, 2001, one only of the three firearms, viz., a Walther P.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le, was misplaced as was evident from a reading of the said Rule itself. The counsel relied upon Column 1 of Appendix 'F' of the Baggage Rules to urge that the import of bona fide baggage to the extent mentioned therein was permissible. 9. The learned counsel for the respondents, Mr. Suresh Kait, on the contrary, contended that the provisions of the Arms Act, 1959, the rules made thereunder, and the Baggage Rules, 1998 framed under Section 79 of the Customs Act, 1962 regulating the import of firearms were not exhaustive, but were supplemental to other applicable laws. He submitted that the import of firearms is governed by the Export and Import Policy (for short "Exim Policy") as laid down by the Director General of Foreign Trade (DGFT), Ministry of Commerce. Under Sections 3 and 5 of the Foreign Trade (Development of Regulation) Act, 1992, the Central Government can make provisions prohibiting, restricting or otherwise regulating the export and import of goods. In the exercise of the aforesaid powers vested in the Central Government, he contended, the import of firearms is prohibited under Rule 8 of the Baggage Rules, 1998 and the Exim Policy 1997-2002 laid down by the DGFT. "Fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the firearm so cleared shall not be sold, transferred, loaned or otherwise parted with, for consideration or otherwise, to any other person in India during the life time of the person concerned. An endorsement to this effect is made in the arm licence and the passport of the passenger concerned at the time of clearance of the firearm. Such endorsement shall continue to be made by the customs authorities at the time of clearance of the firearm in question. Sd/- (T.R. Kapur) Under Secretary (Cus.VI)" 11. A look at the relevant provisions of the Arms Act in the first instance, in our view, is necessary for determining the question in controversy. "3. License for acquisition and possession of firearms and ammunition. - (1) No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder. Provided that a person may, without himself holding a licence, carry any firearm or ammunition in the presence, or under the written authority, of the holder of the license for repair or for renewal of the licence or for use by such holder. (2) Notwithst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n shall bring into, or take out of India any arm or ammunition unless he holds a valid licence in this behalf in accordance with the provisions of the Act and the rules framed thereunder. Under Section 11 of the Act, the Central Government is vested with the power to prohibit import of or export of arms through notification in the Official Gazette. Thus, the Arms Act though permits a person to hold three valid firearm licences and to possess the said firearms, but does not permit import thereof and, as a matter of fact, vests the Central Government with the power to notify the prohibition of import and export of any arm or ammunition. There is no other provision in the Arms Act dealing with the import of arms into India. 13. Section 79 of the Customs Act which is titled 'Bona fide baggage exempted from duty' vests the Central Government to make rules subject to which any baggage may be passed free of duty [Section 79(2)]. A look now at Rule 8 of the Baggage Rules, 1998 framed under Section 79 of the Customs Act, 1962. Rule 8 is extracted below : "8. Transfer of residence. - (1) A person who is transferring his residence to India shall be allowed clearance free of duty, in additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Annexure-1 mentions firearms and accordingly firearms are not permitted to be imported free of duty, but this by no stretch of imagination can be understood to mean that there is no limitation of bringing any number of firearms into the country and, on the contrary, the only effect would be that they are dutiable items. 17. The submission of the learned counsel for the appellant is that in so far as Annexures-1 and 2 are concerned, the same also deal with personal goods and household articles, but they are distinguishable on the ground that they are not free of duty, whereas the other used personal and household articles are allowed to be brought into India under the Baggage Rules free of duty. This interpretation placed on the Baggage Rules cannot be sustained for the simple reason that the Baggage Rules merely deal with baggage which is allowed free of duty and baggage which cannot be permitted without clearance of duty. Thus, Rule 1 pertains to the short title and commencement; Rule 2 gives the definitions; Rule 3 deals with passengers returning from countries other than Nepal, Bhutan, Myanmar or China; Rule 4 with passengers returning from Nepal, Bhutan, Myanmar or China; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d licence issued in accordance with the provisions of the Arms Act and the Rules framed thereunder, but this is as far as it goes. A person is not entitled by virtue of the Arms Act or the Rules framed thereunder to bring of into India such licensed firearms if any provision of law prohibits or restricts the bringing of arms into India. Likewise, as per Rule 8 of the Baggage Rules read with Appendix 'F' to the Rules and Annexure-1 thereto, it is laid down that firearms on transfer of a residence of a person to India cannot be allowed to be brought into India free of customs duty. It is nowhere laid down in the Baggage Rules that any firearm or firearms can form part of the baggage on payment of duty thereon. Thus, quite clearly, for provisions with regard to import and export, it is the import policy which has to be looked into. "Firearms" fall under the restricted category of import policy mentioned in ITC(HS) classification wherein the import of firearms is not permitted except : "(a) against an Import Licence issued by Director General of Foreign Trade to renowned shooter's/Rifle Clubs for their own use on the recommendation of the Department of Youth Affairs and Sports, Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X
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