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TMI Blog1992 (1) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty of Rs. 7,000/- was also reduced to Rs. 1,000/-. 3. Against the said impugned order the Collector of Customs, Delhi filed a review proposal dated 8-10-1991 inter alia on the grounds that reliance by the Collector (Appeals) on the provision of Rule 7(2) of the Tourist Baggage Rules is totally out of context in complete disregard of the legal requirement of Section 77 ibid. 4. In pursuance of the said review proposal and after going through the papers Government issued a show cause notice of even number dated 11-11-1991 to the respondent. 5. The respondent was also heard in person on 9-12-1991 through his advocate Shri K.G. Seth. During the course of the personal hearing the learned advocate inter alia stated that the respondent is an NRI; he reported at the red channel counter and made a declaration; he wanted to take the goods back. Relying upon Rule 7 of the Tourist Baggage Rules he submitted that the respondent was not under an obligation to make a declaration and it was the duty of Customs to give him a list of high value items but the customs did not prepare any such list; that 3000 pcs. of key rings are meant for giving as gift and hence are bona fide baggage. He re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent coming from Karachi (with the above goods) and as per his version before the Deputy Collector he was supposed to go to Lahore. This naturally raised honest doubts about his intentions. Yet Collector (Appeals) has accepted the respondent's version that he came here to "Collect his baggage but which was short received as he learnt later". In other words the respondent came to Delhi to receive his baggage which was, however, not received. The whole sequence of events, as pleaded, seems rather unusual and inexplicable notwithstanding a certain certificate from P.I.A. which is not clear as what it intends to certify. 10. Be that as it may, as a fact it is proved beyond doubt that the respondent walked through green channel without declaring the impugned goods and his plea that he wanted to declare the same is not borne by his actions. If he wanted to declare he simply needed to report at the red channel or TBRE counter, which he did not. 11. The short but most relevant point for consideration that arises is the scope of Rule 7(2) of the Tourist Baggage Rules in the context of Section 77 of the Customs Act, 1962. Rule 7(2) ibid stipulates inter alia that "every tourist shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngers who have nothing to declare. Insistence on written proof of misdeclaration (i.e. of disembarkation card now) is misplaced. Tribunal's reliance on the case of Trilochan Singh v. Union of India [1981 (8) E.L.T. 667 (Del.)] also appears out of context as it concerned with what is now an archaic practice of requiring passengers to fill up baggage declaration form and is not relevant here. The judgment (of Trilochan Singh) related to happening of 1969 (when channel system was not even conceived) held that if baggage declaration form is not produced by the Department an adverse inference would be drawn. Likewise if in the present channel system a disembarkation card is not produced an adverse inference may be drawn if facts otherwise prove that the passenger reported at the red channel. But if facts are clear that a pax walked through green channel, it is of no help to him that he had mentioned any dutiable articles in the card or not. This issue is discussed here only because Government does not agree with the rationale of CEGAT judgment. 15. Coming back to the instant case as rightly pleaded by the applicant Collector Section 77 of the Customs Act, 1962 will govern Rule 7(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endently Government does not see any legal requirement of individual invitation by an Customs Officer soliciting passengers to make declarations. Once a passenger is put to notice of choice of channels, he makes a declaration that he has dutiable goods by his action in reporting at any counter in the red channel/TBRE counter/TR counter. If instead he goes to walk through green channel he makes a declaration that he has no dutiable goods. 19. In a recent judgment delivered on 25-11-1991 by Hon'ble High Court of Delhi in the case of Smt. Jasvir Kaur v. U.O.I, and Others (CW 1399/91) the court per Hon'ble Justice B.N. Kirpal has inter alia observed that :- "It is the tourist who knows as to whether he has brought with him any article of high value. As we read Rule 7 it appears to us that it is incumbent on the tourist who comes into this country bringing with him articles of high value which are intended to be re-exported by him when he goes out of the country to make a declaration and give the undertaking as contemplated by Rule 7. For the sake of convenience the Customs authorities may distribute a list to the passenger who lands at the airport but even if, without demand, no su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been ordered. In our opinion this is a wrong understanding of the law. Whenever an attempt is made to smuggle goods into the country whether by a tourist or by a professional smuggler and the article is recovered by the Customs authorities then unless and until the Customs authorities come to the conclusion that the article is for bona fide use of the passenger the question of a right to re-export being granted does not arise. The rules in this country clearly indicate the value of the articles which can be brought, the number and quantity of the articles which can be brought and if there is an attempt to violate the law then person must suffer the consequences." 20. In view of the above discussions, Government conclude as follows :- (i) The decision of the Hon'ble Tribunal in the case of Lakshmi Devi Kumar and Meera Datta, mentioned in para 5 supra, with respect, do not appear to be as per the legal provisions; (ii) As Government exercises completely independent jurisdiction acting as a revisionary authority, it is not necessary for the Government to apply the said judgments in cases before it. (iii) It is only when a truthful declaration is made under Section 77 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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