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2025 (5) TMI 270 - HC - CustomsSeeking exemption from detention - gold kada seized from the Petitioner at the airport constitutes a personal effect under the Baggage Rules 2016 or not - Petitioner has requested not to receive the Show Cause Notice and personal hearing - HELD THAT - Clearly a perusal of the photographs and the fact that it is one Kada which is usually worn by persons like the Petitioner who are Sikhs leaves no doubt in the mind of the Court that the same was a personal effect of the Petitioner. Moreover in the cases of Mr Makhinder Chopra vs. Commissioner of Customs New Delhi 2025 (3) TMI 19 - DELHI HIGH COURT and Amit Kumar v. The Commissioner of Customs 2025 (2) TMI 385 - DELHI HIGH COURT this Court has discussed various issues arising in such cases where the goods have been detained from a tourist by the Customs Department including the issue of personal jewellery being part of personal effects under the Baggage Rules 2016 and waiver of SCN and personal hearing by way of a preprinted waiver form. Conclusion - Considering the fact that the gold kada seized is merely a personal effect of the Petitioner in the opinion of this Court the detention itself would be contrary to law. The detention of the gold kada is set aside. Petition disposed off.
1. ISSUES PRESENTED and CONSIDERED
The core legal questions considered by the Court are:
2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Whether the gold kada is a personal effect exempt from detention under the Baggage Rules, 2016 The legal framework relevant to this issue includes the Baggage Rules, 2016, which define personal effects and provide exemptions for bona fide personal jewellery worn by tourists. The Court relied heavily on precedents, particularly two recent decisions of the same Court:
In Makhinder Chopra, the Court clarified that jewellery genuinely worn by tourists as personal effects falls within the ambit of the Baggage Rules and is not liable for detention. The Court emphasized the need for Customs authorities to distinguish between mere jewellery and personal jewellery used bona fide by the traveller. The Court also underscored the cultural and religious significance of such items, such as a gold kada worn by Sikh individuals, reinforcing that such items are personal effects. In the present case, the Petitioner, a Sikh tourist, was wearing a single 22 carat gold kada weighing 60 grams. Photographic evidence was submitted to establish that the kada was indeed worn by the Petitioner. The Court found no doubt that the kada was a personal effect, consistent with the principles laid down in the aforementioned precedents. Applying these principles, the Court concluded that the gold kada is exempt from detention under the Baggage Rules as it is a bona fide personal jewellery item worn by the Petitioner. Issue 2: Validity of the waiver of Show Cause Notice (SCN) and personal hearing obtained through a pre-printed form The Customs Department had obtained a signed pre-printed form from the Petitioner, wherein the Petitioner purportedly waived the right to receive an SCN and personal hearing, requesting the case to be decided on merits. The Court referred to the binding precedents of Makhinder Chopra and Amit Kumar, which held that such a practice is contrary to the provisions of Section 124 of the Customs Act. Section 124 mandates the issuance of an SCN and provides for an opportunity of personal hearing before confiscation or detention of goods. In Amit Kumar, the Court held that a printed waiver of SCN and personal hearing cannot substitute the statutory requirement of issuing an SCN and conducting a hearing. The Court declared that detention without issuance of SCN and hearing is unsustainable in law. Applying this reasoning, the Court held that the signed waiver form cannot be deemed a valid SCN or hearing, rendering the detention of the gold kada unlawful. Issue 3: Legality of detention of the gold kada without issuance of SCN and personal hearing Given the findings on Issue 2, the Court examined whether the detention of the gold kada was legally sustainable. The Court reiterated that Section 124 of the Customs Act requires the Customs Department to follow principles of natural justice, including issuance of SCN and personal hearing before detention or confiscation. Since the Petitioner was not issued an SCN and was deprived of a personal hearing, and considering the gold kada was a personal effect exempt under the Baggage Rules, the Court found the detention to be contrary to law. The Court accordingly set aside the detention and ordered release of the gold kada subject to payment of warehouse charges within four weeks. 3. SIGNIFICANT HOLDINGS The Court made the following crucial legal determinations:
The Court conclusively held that the gold kada was a personal effect exempt from detention, the waiver of SCN and hearing was invalid, and the detention was unlawful. The order of detention was set aside and the gold kada ordered released subject to warehouse charges.
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