TMI Blog1987 (8) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,700/- which were worn by her daughters and mother-in-law. According to the Customs all the 12 bangles were in crude form and therefore they attracted the provisions of Section 13(1) of the Foreign Exchange Regulations Act and as such became liable to confiscation under Section 111 (d) of the Customs Act and 8 bangles in respect of which there had been no declaration also became liable to confiscation under Section 111 (1) of the Customs Act. 3. Since the appellant waived the written show cause notice, the Additional Collector after according a personal hearing ordered absolute confiscation of the 12 bangles but released goods valued at Rs. 20,700/- under Baggage Rules and he ordered release of Minolta camera valued at Rs. 3000/- under the T.R. rules and he further ordered for release of the remaining goods valued at Rs. 3,800/- under the Baggage Rules. He also imposed a personal penalty of Rs. 30.000/- on the appellant. 4. Feeling aggrieved by the order of confiscation of the bangles and penalty of Rs. 30.000/-, the appellant had filed this appeal. Shri Chander Kumar, appellant s learned advocate firstly submitted that the order of confiscation under Section 111 (d) was made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. Even the non-declaration was in respect of an old camera and some other miscellaneous goods which the Collector himself has allowed on T.R. and. under Baggage Rules. In the circumstances, there was hardly any justification for the Collector to impose penalty much less a penalty of Rs. 30,000/- on the appellant. 7. Shri Pattekar appearing for the Collector supported the order passed by the Additional Collector. He contended admittedly the appellant did not declare the gold bangles worn by her daughters and mother-in-law. The bangles on her person as well as on the person of her daughters and mother-in-law cannot be considered as ornaments having regard to the shape and the crude form. In the circumstances, the Additional Collector was justified in ordering absolute confiscation. Shri Pattekar urged that the order of confiscation both on the ground of violation of Section 13(1) of the FERA and on the ground of non-declaration was correct. Since the value of the goods not declared amounted to Rs. 57,000/-, the penalty of Rs. 30,000/- imposed was also justified. Shri Pattekar further submitted that non-declaration of the gold bangles worn by the daughters and mother-in-law was wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... worn on the person which are not at all concealed but are visible to the naked eye, and therefore we set aside that part of the order of the Additional Collector namely that the bangles became liable to confiscation under Section 111(1) of the Customs Act. 10. The other ground on which the Additional Collector had ordered confiscation of the bangles was that they were in crude form and they are nothing but gold strips shaped and welded in circular form. The Additional Collector has further described as they are nothing but gold bullion shaped into jewellery of crude form. The appellant had contended that the bangles were purchased in the United States and that were the type of bangles available there. The Additional Collector s order does not indicate that he had obtained any expert opinion. His order also does not indicate that the purity of the bangles were ascertained. His finding that they were nothing but gold bullion is not based on any acceptable evidence. In fairness, the Additional Collector ought to have found out whether bangles are sold in United States in such form and also should have tested them for their purity. The Additional Collector himself described them as b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no precise evidence as to whether the appellant and her daughters and her mother-in-law are entitled to the benefit of Rule 6 of Baggage Rules, we remand the matter to the Additional Collector for the limited purpose of deciding the issue regarding the eligibility of the appellant, her daughters and her mother-in-law to the benefit of Rule 6 of the Baggage Rules. If the appellants and the others are entitled to the benefit then they shall be granted the benefits to which they are entitled and the excess shall be released under the Baggage Rules subject to payment of duty. In the event of the Additional Collector holding that the appellant and the others are not entitled to the benefit of Rule 6 of the Baggage Rules all the bangles shall be released under the Baggage Rules, 1978, subject however to payment of duty. Sd/- (K.S. Dilipsinhji) Member (Technical) Bombay, 25-3-1987 Sd/- (K. Gopal Hegde) Member (Judicial) 14. [Order per: Shri K.S. Dilipsinhji] - I have given serious consideration to the draft order of Brother Hegde but for the reasons which follow I am not able to agree with his conclusion and hence this differing order. The facts of the case as well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Concessions. Her mother-in-law had gone to USA in November, 1984 and she returned with the appellant on 3-6-1985. Shri Chander Kumar pleaded that the Collector s finding that the bangles were gold bullion was not valid and he relied in this behalf on the decision reported in 1984 (17) E.L.T. 46. He further submitted that the bangles were classifiable as jewellery and hence were not covered by FERA. There was, therefore, no violation of FERA by the applicant. It was also not correct to say that the appellant did not make the declaration of the bangles. Hence Section 111 (1) of the Customs Act was not attracted. This was not a case of smuggling and hence the order of confiscation and levy of penalty was bad. The appellant was wearing one mangalsutra, one gold chain, and 4 bangles. In these circumstances, the learned advocate pleaded that the Additional Collector s order should be set aside. 17. It is seen that these arguments had been taken into consideration by the Additional Collector in passing the aforesaid order. The Additional Collector relied on the statement recorded from the appellant under Section 108 of the Customs Act. In this statement the appellant admitted that sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant on 3-6-1985. Therefore, she was not out of India for one year and even on this consideration also she is not eligible to any Baggage Allowance in this behalf as held by Bro. Hegde. The same fact also applies to the two daughters of the-appellant. It has been urged by the learned advocate that the two daughters were schooling in India for the last 2 years and they had gone for a brief visit to meet their parents in the USA before their return permanently. Therefore, even if we were to ignore that the gold bangles belonged to the appellant, there is no question of her daughters being eligible to the benefit of Baggage Rules in respect of the two gold bangles worn by each of them. Apart from this, it is seen that the total value of jewellery which can be cleared free of duty in favour of a lady passenger is Rs. 3.000/-. In the present case, the value of even one bangle is more than this limit and therefore, in practice also no benefit of free allowance under Rule 6 can be given to the appellant or to her daughters and mother-in-law. The learned advocate had urged that such bangles were freely available in the USA. Whether this is so or not is not relevant for the purpose of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 77 the passenger is required to make a correct declaration of the same. It is only in such a case that the benefit of Section 80 would be available to the passenger. If therefore, it were to be argued that articles worn on person or brought in the pocket of the clothes worn by a passenger were not to be declared under Section 77, they cannot get the benefit of export under Section 80. This is really not the intention or the interpretation of Section 77. Therefore, with great respect to Bro. Hegde I disagree from his finding that the gold bangles worn by the appellant and the other members of the family were not required to be declared by the appellant or by the other members of her family on arrival in India. 18. As regards the Additional Collector s order of levy of a penalty of Rs. 30,000/- on the appellant, the learned advocate contended that this was not a case of levy of penalty. He further replied to a query from the Bench that the penalty was levied only in respect of the importation of the gold bangles and not for the non-declaration of the items of the appellant baggage valued to the tune of Rs. 6.800/-. There is no such finding in the Collector s order. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be rejected as held by Member (Technical) Sd/- Member (Judicial) 9-4-1987 Sd/- Member (Technical) 9-4-1987 On Difference of Opinion between Member (T) and Member (J) OPINION 20. The following points of difference occurring between the two learned Members - Member (Technical) Shri K.S. Dilipsinhji and Member (Judicial) Shri K. Gopal Hegde - has been referred to me by the Hon ble President under Section 129C(5) of the Customs Act for my opinion: (i) Whether in the facts and circumstances of the case, the Additional Collector s order of absolute confiscation of 12 gold bangles and levy of penalty of Rs. 30,000/- on the appellant should be set aside and her appeal allowed; and (ii) the case remanded to the Additional Collector for consideration as to whether the appellant, her two daughters and mother-in-law are entitled to the benefit of Rule 6 of the Baggage Rules as held by Member (J) or the Additional Collector s order should be confirmed and the appeal should be rejected as held by Member (T). 21. Facts of the case have been set out in the opinions of the two learned Members. Therefore, I need not repeat the facts here. They would, however, be referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the Customs Tariff Act, 1975. There is no mention in the definition that crude jewellery is not to be considered as jewellery. Learned Consultant has pointed out that the adjudicating authority has gone on some pre-notions regarding the definition of jewellery and appears to have gone on the definition of ornaments given in the Gold (Control) Act which has no application to the jewellery imported from outside. 25. I have carefully considered the pleas of the appellant. I am inclined to agree with her plea and the finding of learned Member (J) Shri Hegde insofar as this issue is concerned. Accordingly, 12 bangles in question are not liable to confiscation under Section 111 (d) as has been held by the learned adjudicating authority and the learned Member (T). 26. Eight out of the 12 bangles have been confiscated by the learned adjudicating authority under Section 111 (1) of the Customs Act on the ground that these were not declared to the Customs Officer at the counter by the appellant. She has inter alia declared only 4 bangles worn by herself but the other 8 bangles, namely 4 worn by her mother-in-law and 2 each worn by her daughters had been held by the learned adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber (T), it would lead to a great scope for smuggling of the goods by unscrupulous international passengers. Such a narrow meaning would, therefore, defeat an important object which is to prevent smuggling of goods across the borders of the country. The fact that even personal jewellery worn by a passenger is also required to be declared, is apparent from Sr. No. 13 of the baggage declaration form prescribed under the regulations made under Section 81 of the Act, this serial number reads as under: 13. Personal jewellery in use. 27. Be that as it may, what is required to be seen in this case, whether appellant has indulged in the act of non-declaration of gold bangles requiring the goods liable to confiscation under Section 111 (1). The learned consultant has stressed that the learned Member (T) s finding of non-declaration has relied heavily on the statement dated 3-6-1985 of the appellant as well as the pleadings recorded by the adjudicating authority in the impugned order of the Additional Collector. Learned Consultant has pointed out that this statement was given by the appellant under a lot of strain when she had been travelling in an economy class of the aeroplane for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he consequences. There could also be a possibility of a communication gap between the appellant and the learned adjudicating authority. 28. I have carefully considered the various pleas of the learned Consultant regarding non-declaration and have referred to the various facts and circumstances mentioned by him which have also been duly taken into account by the learned Member (J) in his findings. I am inclined to give the benefit of doubt to the appellant regarding the charge of non-declaration or under declaration of the goods under Section 77 of the Customs Act. Accordingly, 8 bangles are not liable to confiscation as has been held by the learned adjudicating authority and confirmed by the learned Member (T). 29. In the aforesaid circumstances, absolute confiscation of the 12 bangles and penalty of Rs. 30,000/- imposed on the appellant is set aside as held by the Member (J). 30. For the reasons given by the learned Member (J) the case regarding charge of appropriate duty after allowing concession admissible to the appellant under the Baggage Rules in respect of the jewellery is required to be remanded to the Additional Collector. It will not be appropriate for us to decide ..... X X X X Extracts X X X X X X X X Extracts X X X X
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