TMI Blog2022 (6) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... ing India and if for any reason, the passenger is unable to collect the article at the time of leaving India, the article may be returned to him through any other passenger authorised by him who would be leaving India or as cargo consigned to him - jewellery items are not articles of personal effect. Jewellery are any other articles other than the articles of personal effect . Therefore, the petitioners being tourist within the meaning of Rule 2(1)(v) of the said Rules are governed by Sub Clause (b) of the Rule 3 of Baggage Rules, 2016. The said Rule read with Annexure I makes it clear that gold or silver ornaments upto a value of Rs.50,000/- worn in person or carried on person are only freely importable. Import of gold or silver ornaments exceeding Rs.50,000/- cannot be considered as part of bonafide baggage of tourist travelling to India. The petitioner should have paid customs duty, if they intended to deliver, sell them or gift them to a person in India. On the other hand, if they intended to retain them, they should have requested the proper officer to detain them for being returned to them. The reasoning of the learned single judge of the Kerala High Court inVIGNESWA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners are the parents of the first petitioner while the fifth petitioner is the paternal aunt of the first petitioner. 4. These petitioners are Srilankan nationals based in Colombo. They arrived at the Chennai Airport on 06.05.2017 along with two minor children of the first and second petitioners. All the petitioners were wearing 1594 kgs of gold jewelries valued at Rs.43,95,854/- . 5. It appears that they attempted to walk through the green channel along with two minor children wearing 1594 kgs of gold jewelries without making declaration before the Customs Officers. Apart from the jewelries, the first petitioner had also purchased about 112 bottles of liquor valued at Rs.1,50,000/-. 6. The officers of Air Customs Department intercepted them and found that there was an attempt to smuggle liquor beyond the permissible limit. It was further found that these petitioners along with two minor children were wearing jewelries weighing about 1594 kgs and therefore the jewelries and the liquor bottles were seized. Subsequently, a show cause notice under Section 124 of the Customs Act, 1962 was issued to them on 02.11.2017, to show cause as to why:- i) the five nos. of gold b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andrasegaram Rajaluxmi and Smt.Raveendhiran Shanthadevi under Section 112 (a) of the Customs Act, 1962; vii)penalty should not be imposed on Shri.Chandrasegaram Viajyasundaram, Smt.Vijayasundaram Mahalakshmi, Shri.Somasundaram Chandrasegaram, Smt.Chandrasegaram Rajaluxmi and Smt.Raveendhiran Shanthadevi under Section 114 AA of the Customs Act, 1962. 7. The allegations against the petitioners in the show cause notice dated 2.11.2017, reads as under:- 10. Shri.K.Sudhakaran, Supervisor of Flemingo Duty Free Shop (Arrival Departure), Anna International Airport, Chennai gave a voluntary statement dated 10.05.2017, wherein he has inter-alia stated that 12 bottles were sold to the group of passengers against their respective passports; that he would submit the sales details after ascertaining the same from Shri Aneesh, who was the sales staff attending to the sales to the passengers on that day. 11. A summons was issued to Shri.K.Sudhakaran, of M/s.Flemingo DFS, under Section 108 of Customs Act, 1962 on 15.05.2017, as he had failed to submit the sales details of the said date after ascertaining the same from Shri Aneesh, the sales person of DFS as assured by him in his earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity Amount in USD 1 Chandrasegaram Vijayasundaram N 6888808 CHN001P00 2750879 06.05.2017 Chivas Regal 2 Nos 64 (128) 2 Vijayasundaram Mahalakshmi P 9610772 CHN001P00 2750879 06.05.2017 Chivas Regal 2 Nos 64 (128) 3 Somasundaram Chandrasegaram N 7477066 CHN001P00 2750881 Chivas Regal 2 Nos 64 (128) 4 Chandrasegaram Rajaluxmi N7477006 CHN001P00 2750880 06.05.2017 Chivas Regal 2 Nos 64 (128) 5 Raveendhiran Shanthadevi N 3986097 CHN001P00 2750880 06.05.2017 Chivas Regal 2 Nos 64 (128) 6 Vijay 68901470 CHN001P00 2750881 06.05.2017 Chivas Regal 2 Nos 64 (128) 15. The family membe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Act, 1962. xiii) I order confiscation of the four nos. of gold bangles and one gold chain totally weighing 293.5 gms and totally valued at Rs.7,83,381/- (Rupees seven lakhs eighty three thousand three hundred and eighty one only) recovered from the possession of Smt.ChandrasegaramRajaluxmi under Section 111(d) and (1) of the Customs Act, 1962 read with Foreign Trade (Development Regulation) Act, 1992. However, I allow the said passenger an option to redeem the gold for re-export on payment of fine of Rs.3,00,000/- (Rupees three lakhs only) under Section 125 of the Customs Act, 1962. xvii) I order confiscation of the four nos. of gold kadas and one gold chain totally weighing 304 gms and totally valued at Rs.8,11,406/- (Rupees eight lakhs eleven thousand four hundred and six only) recovered from the possession of Smt.Raveendhiran Shanthadevi under Section 111(d) of the Customs Act, 1962 read with Foreign Trade (Development Regulation) Act, 1992. However, I allow the said passenger an option to redeem the gold for re-export on payment of fine of Rs.3,00,000/- (Rupees three lakhs only) under Section 125 of the Customs Act, 1962 . The discussion which led to the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non bonafide baggage and the same are also liable for confiscation under Section 111(d) and (1) of the Customs Act, 1962 read with Foreign Trade (Development and Regulation) Act, 1992 . 10. Aggrieved by the aforesaid order of the third respondent, the petitioners herein filed an appeal before the Appellate Commissioner. By a common Order in Appeals (Airport), C.Cus.1.No.69-73/2018 dated 27.04.2018, the above appeals were allowed with the following observations:- 6. I have carefully gone through the facts of the case, impugned order and the grounds or appeal. I find from the records that the appellants being foreign nationals were wearing the gold jewelry in their prison and did not declare the gold jewelry brought by them to Customs as required under Section 77 ibid and was intercepted by the Customs officer at the exit point. Taking into consideration that there was no ingenious concealment and the ownership was also not disputed, the LAA confiscated the impugned gold and allowed for re-export on payment of fine and imposed penalty on the appellants. As per the discussions in the impugned order, it can be inferred that the gold jewelry belonged to the applicants. Whether go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quential relief. 11. Having succeeded in the appeal before the Appellate Commissioner, the petitioners wanted refund of the amount paid by them towards redemption and penalty, unaware of the fact that the respondents herein had filed a Revision Application before the first respondent under Section 129 DD of the Customs Act, 1962, against the order of the Commissioner (Appeals). 12. The petitioners had thus filed W.P.Nos.51,55,56, 58 and 60 of 2020. These writ petitions were disposed by this Court vide its common order dated 22.04.2021 and directed the first respondent to pass appropriate orders on merits in the revision application filed before the first respondent within a period of 12 weeks. 13. By the impugned order dated 14.07.2021, the first respondent reversed Order in Appeals Airport, C.Cus.1.No.69-73/2018 dated 27.04.2018 passed by the Commissioner of Customs (Appeals) and thus affirmed the order of the third respondent ordering confiscation of the gold liquor and imposition of redemption fine and penalty under Section 125 and Section 112 (a) of the Customs Act, 1962. The first respondent further held that there was no necessity to impose separate penalty under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther submitted that the decision of the Hon'ble Supreme Court in Directorate of Revenue Intelligence vs. Pushpa Lekhumal Tolani , 2017 (353) E.L.T.129 ( S.C.) has already answered the issue. A specific reference was made to paragraph No.7 on the fact and reasoning given in para Nos.9 and 10. 20. It is further submitted that the decision of the Hon'ble Supreme Court in Directorate of Revenue Intelligence vs. Pushpa Lekhumal Tolani, 2017(353) E.L.T.129 ( S.C.), was referred by the Hon'ble Division Bench. 21. It is further submitted that the decision of the Supreme Court has laid down the ratio which has to be followed through in para no.13, where the Hon'ble Supreme Court has confined the ratio to the facts of the case. 22. It is submitted that the prohibition under the ITC Policy is to be inferred only as per the Baggage Rules, 2016 in conjunction with saving Clause 3(1)(h) of Foreign Trade (Exemption from Application of Rules in Certain Cases) Amendment Order, 2017. 23. It is submitted that the confiscation of the jewelry of the respective petitioners and minors worn on person were outside the purview of the Customs Act 1962 and Baggage Rules, 2016 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or consideration in this writ petition are (i) whether the respective petitioners were required to declare jewelry items worn by them on their person after disembarking from the aircraft or were entitled to walk through green channel without making any declaration before the proper officer of the Customs Department? and (ii) whether such an act attracted any penal provisions under the Customs Act, 1962? 32. Before proceeding further, it should be remembered that the scope of review under Article 226 of the Constitution of India is limited. Review under Article 226 of the Constitution of India is confined to the decision making process and not the decision perse. 33. Prima facie , no material irregularity is discernible in the decision making process adopted by the first respondent. The impugned order also does not suffer from any vices of violation of principle of natural justice. The order is also not unreasonable. Therefore, the present writ petition is liable to be dismissed. 34. Since the decision of the Kerala High Court was cited by the learned counsel for the petitioners which has given its views in favour of the petitioners, I am duty bound to examine the same a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age includes unaccompanied baggage but does not include motor vehicles . 38. As per Section 80 of the Customs Act, 1962, a proper officer, at the request of a passenger, can detain any article in a baggage of a passenger which are either dutiable or the import of which is prohibited, in respect of which, a true declaration has been made under Section 77 for being returned on his leaving India and if for any reason, the passenger is unable to collect the article at the time of leaving India, the article may be returned to him through any other passenger authorised by him who would be leaving India or as cargo consigned to him. 39. The Board has also framed Baggage Rules,2016 under Section 81 of the Custom Act, 1962. It replaced the 1998 Rules. Rule 3 of the Baggage Rules, 2016 which is relevant for this case reads as under:- RULE 3. PASSENGER ARRIVING FROM COUNTRIES OTHER THAN NEPAL, BHUTAN OR MYANMAR. - An Indian resident or a foreigner residing in India or a tourist of Indian origin, not being an infant arriving from any country other than Nepal, Bhutan or Myanmar, shall be allowed clearance free of duty articles in his bona fide baggage, that is to say,- (a) u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .50,000/- (Rupees Fifty Thousand only) worn in person or carried on person are only freely importable. 44. Since the value of the gold ornaments worn in person of the respective petitioners exceeded Rs.50,000/- (Rupees Fifty Thousand only), it was incumbent on the part of the petitioners to have made proper declaration under Customs Baggage Declaration Regulations, 2013 read with Baggage Rules 2016. These Rules apply to all passengers including tourist coming to India. 45. These Rules are clear. There is no scope for any ambiguity and confusion. If the value of gold and silver ornaments exceeded the value under the Rules, the petitioners were required to make appropriate declaration. 46. Import of gold or silver ornaments exceeding Rs.50,000/- (Rupees Fifty Thousand only) cannot be considered as part of bonafide baggage of tourist travelling to India. The petitioner should have paid customs duty, if they intended to deliver, sell them or gift them to a person in India. On the other hand, if they intended to retain them, they should have requested the proper officer to detain them for being returned to them. 47. The petitioners should have followed Section 80 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tainty as to whether it is prohibited or not. As the Customs Act, 1962 and the rules framed thereunder contemplate confiscation and levy of penalty as also prosecution, the State has a duty to specify with a degree of certainty as to what is prohibited and what is not, without leaving it to the foreign tourist to guess what is prohibited and what is not . cannot be accepted. Therefore, I am unable to subscribe to the views expressed by the Kerala High Court in Vigneswaran Sethuraman v. Union of India , 2014 (308) E.L.T. 394 (Ker.) to grant relief to the petitioner. In any event, the decision was rendered in the context of the Baggage Rule, 1998, whereas, the present case is governed by the Baggage Rules, 2016. 51. For the same reason, the decision of the Division Bench of Kerala High Court in Union of India Vs Vigneswaran Sethuraman vide its order dated 30.06.2014 in W.A.No.694 of 2014 affirming the views of the learned single judge in Vigneswaran Sethuraman, vs. Union of India Representated by the Secretary, Department of Revenue, Ministry of Finance, Government of India, North Block, New Delhi 110 001 and another, (2014(308) ELT 394(Ker.) also cannot be followed in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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