TMI Blog2006 (9) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act, 1962 by Respondent No.3. Even though the order is appealable, the Petitioner chose to file a writ petition in this Court challenging its correctness, since it is claimed by her that Respondent No.3 had no jurisdiction to issue the said show cause notice in the facts and circumstances of this case and the law, particularly the Baggage Rules, 1998 read with the circular bearing No.72/1998-Cus. dated 24.09.1998. Notice was issued in the writ petition some time in 2003 and since then the petition is pending. 2. The Petitioner is a person of Indian origin and is an Indonesian national. She is settled in England along with her husband and daughter. On 18 th November, 2002 she and her husband came to India on British Airways flight No. BA 143 from London apparently to attend a wedding. At Delhi airport, the Petitioner was going through the Green Channel and was intercepted by the Customs officials, who asked her whether she had any dutiable items to declare, to which she replied in negative. Thereafter, it appears that she and her husband were detained and a personal search was carried out which indicated that even though she had seven pieces of checked in baggage, not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal effects" of a tourist are allowed to be imported temporarily free of duty. The expression "personal effects" has been defined in the explanation to Rule 11 and this reads as follows: "The expression "personal effects" means all clothings and other articles, new or used, which a tourist may personally and reasonably require taking into account all the circumstances of his visit but excluding all merchandise imported for commercial purposes." 10. The Baggage Rules of 1994 were subsequently superseded by the Baggage Rules, 1998 and the relevant rule in this regard relating to Tourists is Rule 7, which reads as under:- "A tourist arriving in India shall be allowed clearance free of duty articles in his bona fide baggage to the extent mentioned in column (2) of Appendix E." Appendix E in so far as it is relevant to tourists like the Petitioner who come from countries other than Pakistan, Nepal or Bhutan is as follows:- (b) Tourists of foreign origin other than those of Nepalese origin coming from Nepal or of Bhutanese origin coming from Bhutan or of Pakistani origin coming from Pakistan. (i) used personal effect and travel souvenirs, if - (a) these goods are for pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile Notn. No. 45/92 defined personal effects as articles both new or used and Rule 11 of Baggage Rules, 1994 allowed personal effects of tourists for duty free import, the Baggage Rules, 1998 allows only used personal effects of the tourists. It is not the intention of the Board to verify the newness of every product which a traveller brings so long as it is not prima facie new goods in their original packagings which can be disposed of off hand." (emphasis supplied) 12. On the basis of these provisions, learned counsel for the Petitioner submitted that since the jewellery was "personal effects" and there was no requirement of declaring one's personal effects, the Petitioner had not committed any offence under the Customs Act. 13. Learned counsel for the Petitioner has drawn our attention to the statement of the Petitioner to the effect that goods are valued at U.K. Pound Sterling 1,10,000/- which is equivalent to Rs.1.27 crores. However, during the cross-examination of the witnesses produced on behalf of the customs authorities before the adjudicating authority, it was stated by the witnesses that the value of the goods would be about Rs.25 lakhs. In fact, one of the wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Petitioner to the statutory remedy. 17. In so far as the question of the intention of the Petitioner to take back the jewellery to England is concerned, we do not think the air ticket sought to be relied upon by learned counsel for the Respondent is of much consequence. The ticket, we find, was purchase by the Petitioner in April, 2002, that is, seven months before the date of departure. There could be a change in date by few days here and there particularly because it is a first class ticket and therefore that is of no consequence. Moreover, we cannot ignore the contention of the Petitioner to the effect that her parents are in Indonesia and she had plans of proceeding to Indonesia. She had stated that she had planned to purchase return air tickets from Delhi to Jakarta (Indonesia)/Singapore, as she had been doing so in the past, while in Delhi and she also produced evidence of her similar previous purchases before the Respondents. 18. Some of the jewellery items items purchased by the Petitioner were for her personal use and some were intended to be left with her parents in Indonesia. One of the items confiscated by the customs was a silver panther which was valued in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in India" To our mind the answer has to be in the negative. This is because it could not be said that the jewellery was new goods packed "in their original packaging", much less to say that it could "be disposed of off hand". The expression "new" connotes that which is not at all used. It does not include "like new". 22. The Board circular dated 24.09.1998 itself states that it is not the intention of the Board to verify the newness of every product which a traveller brings with him as his personal effect. It is quiet reasonable that a traveller may make purchases of his personal effects before embarking on a tour to India. It could be of any personal effect, including jewellery. Therefore its newness is of no consequence. The expression "new goods" in their original packing has to be understood in a pragmatic way. What it conveys is that the personal effects which are in their original sealed packing, as they would be when bought off the shelf, which have not even been opened/unpacked (because that is what can confirm their newness) and can therefore be disposed of as such, without even opening the packaging, that is, "off hand", may prima facie be presumed not to constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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