TMI Blog1980 (4) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... white metal base set with one big stone and surrounded by smaller stones ... 5 gms. Rs. 4,000 3. One diamond ring with white metal base set with one big stone and surrounded by smaller stones ... 7 gms. Rs. 55,00 4. One packet containing 51 Nos. diamonds ... 2.5 gms. 13 carats Rs. 35,100 Total Rs 80,850 The total value of these four items, according to the petitioner, was Rs. 80,850. On the basis of the declaration the customs authorities issued a detention receipt. It is the petitioner's case that at the time of giving the declaration, he made an oral request for re-export of the declared jewellery and diamonds as required under Ss. 77 and 80 of the Customs Act, 1962 (hereinafter referred to as the Act). He followed up his oral request for re-export of the declared items by a letter addressed to the Assistant Collector of Customs, Madras airport. Thereafter, he was arrested and produced for remand before the then Chief Presidency Magistrate, Egmore, Madras Subsequently, the first respondent, the Additional Collector of Customs, Madras issued a show cause notice to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on hall and produced a bunch of passports along with the pooled baggage of himself and his group before the customs officers. He then picked out his baggage and produced the same for customs examination. Before examination of his baggage, the petitioner was asked by the Customs officer to make a written declaration of the goods in his possession, especially gold, diamonds and watches. The petitioner accordingly filled in the baggage declaration form. In the said form he declared that he was in possession of one ear ring two rings and about ten carats diamond. Besides, the petitioner had also imported one Omega wrist watch valued at Rs. 400, one lady's wrist watch valued Rs. 100 and miscellaneous goods valued Rs. 50. He was allowed to take these items under the baggage rules. However, the petitioner did not possess any import licence or Reserve Bank of India permit to cover the import of the aforesaid diamonds and jewellery. They were, therefore, detained under detention receipt No. 124693, dated 7-2-1970 for necessary action under the customs law. It is further stated in the counter-affidavit that the petitioner gave a statement that the diamonds and jewellery under detention were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute ban against the import of diamonds into the country. The learned Counsel, however, contended that on the facts and circumstances of the case the petitioner had not committed an offence under S. 11I(d) of the Act. As soon as the petitioner reached the customs area of the Meenambakkam airport he was given a form to declare his personal effects. Accordingly, he signed a declaration form and declared that he had brought with him the items of jewellery and the diamonds. The learned Counsel would further state that the petitioner made a request to the customs officials that he might be permitted to re-export the items. The situation according to Mr. Ghani attracted Ss. 77 and 80 of the Act and not S. 111(d) of the Act. The learned counsel further emphasised the fact that the petitioner was prosecuted and convicted under S. 135 of the Act by the Sub-Divisional Magistrate, Poonamallee. However, on appeal, the petitioner was acquitted. 4. Mr. U.N.R. Rao, learned Senior Central Government Standing Counsel, contended that this was a clear case where the petitioner has contravened the provisions of S. 111 (d) of the Act. The petitioner has given a statement to the customs officials on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve times the duty sought to be evaded on such goods or one thousand rupees, whichever is the greater ; (iii) in the case of goods in respect of which the value stated in the entry made under this Act or in the case of baggage, in the declaration made under Sec. 77 (in either case hereafter in this section referred to as the declared value) is higher than the value thereof, to a penalty not exceeding five times the difference between the declared value and the value thereof or one thousand rupees, whichever is the greater; (iv) in the case of goods falling both under clauses (i) and (iii) to a penalty not exceeding five times the value of the goods or five times the difference between the declared value and the value thereof or one thousand rupees, whichever is the highest; (v) in the case of goods falling both under clauses (ii) and (iii) to a penalty not exceeding five times the duty sought to be evaded on such goods or five times the difference between the declared value and the value thereof or one thousand rupees, whichever is the highest." 6. To attract Sec. 111(d) of the Act, there must be an import of the goods or an attempt to import goods contrary to any prohibitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corporated in and got mixed up with the totality of the property in the country, they cannot be said to have been imported. It will be useful in this connection to refer to the decisions of the Supreme Court in Express Mills v. Municipal Committee, AIR 1958 SC 341. In that case, S. 66 (1)(c) of the C.P. and Berar Municipalities Act, 1922 authorised the imposition of a terminal tax on goods imported or exported from the limits of the municipality. The question was whether the goods passing in transit through the municipal limits without loading or unloading or stopping within the municipal limits was liable to the terminal tax. The Supreme Court observed thus - "By giving to the words `imported into or exported from', their derivative meaning without any reference to the ordinary connotation of these words as used in the commercial sense, the decided cases in India have ascribed too general a meaning to these words which from the setting context and history of the clause was not intended. To construe the words `import' and `export' as meaning bring in or take out of or away from and cover the goods in transit by the words imported into or exported from would make rail borne goods pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssenger arrived from overseas by an Air France Flight at Palam airport, New Delhi. Upon arrival at the airport, he requested the customs officer on duty to keep in customs custody a packet which was declared by him to contain four smaller packets containing diamonds of the value of approximately 34,000. Thereupon, the Customs Officer on duty issued a detention receipt stating that one packet containing four smaller packets said to contain diamonds of the value of 34,000 sealed with the passenger's own seal and the customs seal over his signatures had been received. It was further stated on the face of this receipt by the Customs Officer `declared re-export allowed' and `declared pending re-export out of India'. Again, before his departure from India he requested for the return of the diamonds but they were not delivered back or released. Thereafter, the proceedings were initiated against him for confiscation of the diamonds under the Act. In this context, the question arose whether the passenger had imported the diamonds in India and had thereby contravened Sec. 111(d) of the Act. After referring to the decision of the Supreme Court in Express Mills v. Municipal Committee, AIR 1958 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ahmed Shah v. Astt. Collector of Customs, 1975 L.W. Crl. 127. During the narration of the details of the case, I have already referred to the fact that the petitioner was prosecuted and convicted under Sec. 135 of the Act by the Sub Divisional Magistrate, Poonamallee. Against the conviction the petitioner filed C.A. No. 712 of 1973. (K.R. Ahmed Shah, Appellant v. Collector of Customs-Respondent) on the file of this court while the first respondent filed Crl. R.C. 58 of 1972 for enhancing the sentence. Krishnaswamy Reddy J. allowed the petitioner's criminal appeal and acquitted him and dismissed the criminal revision petition filed by the first respondent for enhancement of the sentence. It was argued before Krishnaswamy Reddy J. on behalf of the first respondent that the petitioner must be deemed to have imported the diamonds as soon as the aircraft landed at the Meenambakkam airport. Dealing with this contention Krishnaswamy Reddy J. observed as follows - "The learned Counsel appearing for the Assistant Collector Sri G. Ramaswami has made an attempt to argue that when the appellant brought the diamonds and alighted at the airport, he has committed the offence of smuggling at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enience and confusion and would render the goods which are in the aircraft meant to be carried to other countries subject to the Customs laws of this country. (3) Once a passenger enters the Customs area and makes a declaration of what all he had brought and does not make any attempt to take the goods across the Customs barrier in violation of the customs laws of this country, it cannot be said that he had imported or attempted to import any goods contrary to any prohibition imposed by and under the Act or any other law for the time being in force. 12. It is in the light of the above principles it has to be considered whether the petitioner has contravened the provisions of S. 111(d) of the Act. It is not disputed that as soon as the petitioner entered the customs examination hall he made a full declaration of what all he had brought. Excepting the four items of jewellery and diamonds the other items were allowed free. It is not suggested that the petitioner had concealed these items in his bag and that only after the customs officials discovered the same that he made a declaration of the same. In fact, from the file I am able to see that the officer himself has noted that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad seized diamonds and jewellery from his brother and sister-in-law. First of all, the adjudicating officer himself did not take this into consideration while finding that the petitioner was guilty of violation of S. 111(d) of the Act. Secondly, in paragraph 15 of the counter affidavit itself it is asserted that the adjudicating authority had made only a passing reference to the seizure of diamonds and jewellery from the petitioner's brother and sister-in-law and that the adjudicating officer had made a specific mention that he was not taking this correlating evidence into consideration for coming to his conclusion. Having stated so in the counter affidavit, it is not open to Mr. Rao to contend now that the fact of seizure of jewellery and diamonds from his brother and sister-in-law prompted the petitioner to make a declaration. Even otherwise, I do not think the petitioner would have acted wrongly after he found that his brother and sister-in-law had been caught in their attempt to smuggle into the country contraband goods in violation of the provisions of the Act and that therefore he should make a clean declaration of what all he had brought and should not commit an offence. I h ..... 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