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TMI Blog2024 (3) TMI 1193X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned order'), as totally arbitrary, irregular and without basing on the facts and consequently to set aside the same. 2. Heard Mr. A. Ramakrishna, learned counsel for the petitioner and Mr. Dominic Fernandes, learned Senior Standing Counsel for Central Board of Indirect Taxes (C.B.I.C.), for the respondents. 3. The impugned order is one which has been passed by the Customs, Excise and Service Tax Appellate Tribunal, Regional Bench at Hyderabad (C.E.S.T.A.T.), (for short, 'the Tribunal') on 01.04.2019 whereby the Tribunal had affirmed the Order-in-Appeal, dated 26.03.2018, passed by the 2nd respondent in Appeal Case No. HYD-CUS-000-APP-152&153-17-18. 4. The brief facts which led to the filing of the present Writ Petition is that the petitioners herein are wife and husband who had in the year 2014 gone to the United States of America where they had stayed for a period little less than six months. After staying there for some time, the petitioners came back to India on 29.10.2014 via Doha and from Doha they took the flight to Hyderabad. After collecting their baggage, the petitioners passed through the green channel and just while they were about to cross the exit gate, the offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te authority vide its order dated 30.12.2014 dismissed the appeal filed by the petitioners, whereas the appeal filed by the respondent-Department was partly allowed by modifying the Order-in-Original to the extent that the petitioners would be liable to pay customs duty @ 35% plus cess, as is applicable on the gold. It is this order which was subsequently subjected to challenge before the CESTAT. 8. The CESTAT also after hearing the petitioners has decided the appeal elaborately dealing with all the issues that the petitioners have raised as grounds in the appeal that they had preferred and finally vide the impugned order rejected the appeal confirming the order passed by the Commissioner Appeals. It is these orders which are under challenge by the petitioners in the instant appeal. 9. Learned counsel for the petitioners highlighted the fact that the authorities concerned and also the Appellate Tribunal failed to appreciate the fact that there was no mens rea on the part of the petitioners to smuggle gold into India. According to the petitioners, the fact that the bangles were worn by petitioner No. 1 on her hand which was glaringly visible to one and all itself establishes that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms. of five gold bangles, the market value of which at that point of time was more than Rs. 8.5 lakhs. The gold bangles which is said to have been brought by the petitioners was not in fact a jewellery as it would be evident from the fact that it was pure gold with its purity at 99.9 which is not normally used for manufacture of jewellery and therefore a strong inference has to be drawn. That it was with an intention of suppressing it from the Government and for evading tax and other liabilities that would had occurred in favour of the petitioners. 15. According to the learned counsel for the respondent-Department the case of the petitioners squarely falls within the definition of smuggling and also falls in violation of the foreign trade policy in so far as smuggling of gold is concerned. That since the petitioners have not been saddled with the tax liability of payment of excess duty, but has only been ordered to pay fine and penalty which too has been subsequently reduced substantially by the Appellate Authority, there is hardly any scope left for interfering with the same now. 16. It was also the contention of the learned counsel for the respondent-Department that the fact th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion could be subject to certain prescribed conditions to be fulfilled before or after clearance of goods. If conditions are not fulfilled, it may amount to prohibited goods." 19. The said judgment has further been reiterated on various occasions. Thus, the said stand gets confirmed. According to the baggage rules, 1998, a person is entitled to import articles in a bona fide baggage including gold ornaments of only up to Rs. 15,000/- or of the value of Rs. 45,000/- free of duty if the passenger is returning from stay in the foreign country for a period of less than three (03) days respectively. As per the baggage rules, 1998, if a lady passenger is residing abroad for over a period of one (01) year, she is eligible to bring jewellery up to an average value of Rs. 1,00,000/- free of duty. In contravention to the same, the petitioners herein have brought bangles weighing around 311.00 gms., the market value of which was more than Rs. 8.5 lakhs as assessed by the Government approved valuer. 20. The import and export of goods into and out of India are subject to the provisions of the Foreign Trade (Development and Regulation) Act, 1992. In exercise of the powers conferred by Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of Appeals subsequently, while modifying the order, both of which subsequently stood affirmed by the CESTAT vide the impugned order under challenge in the present case. 24. The decision relied on by the learned counsel for the petitioners in Directorate of Revenue Intelligence vs. Pushpa Lekhumal Tolani AIR 2018 S.C. 438 is a decision which is distinguishable on its facts itself and would not come to the rescue of the petitioners for the simple reason that the facts of the case are entirely different to the facts in the instant case. 25. In the case of Pushpa Lekhumal Tolani (2 supra), the respondent therein had come to India from London as a tourist and under the Baggage Rules, tourists were permitted to bring in personal old jewellery. In was in this context that the said decision was rendered, and unlike the facts of the instant writ petition where the factual matrix which has been narrated in the initial part of this judgment would itself clearly indicate the distinction of the facts in the present writ petition with the facts of the case in Pushpa Lekhumal Tolani (2 supra). 26. Further, the Delhi High Court in the case of Ms. Jasvir Kaur vs. Union of India AIR 1992 DE ..... X X X X Extracts X X X X X X X X Extracts X X X X
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