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TMI Blog2025 (2) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... riage function of one Aamir Ali, a close relative. The petitioner has filed the marriage invitation and the photos taken along with the bride and groom at Abudhabi. She undertook the visit along with her 2 children and was wearing 10 numbers of gold bangles, chain and a ring as part of her person when she left for abroad. 4. After completing her visit, when she returned to India, at International Airport, Chennai, the officer attached to 2nd respondent had detained the 10 nos. of gold bangles, which worn by her person, stating that it is the case of importation in contravention of the Baggage Rules and provisions of the Customs Act, 1962. The bangles weighing about 135 grams taken from the custody of the petitioner by the 2nd respondent's officials on 15.01.2024 under the Detention Mmemo No.18450 dated 15.01.2024. 5. The learned counsel appearing for the petitioner would further submit that the aforesaid bangles were old, which were purchased about 12 years back and she wore the bangles, chains, etc., to Abu Dhabi only for the purpose of attending friend's marriage at Abu Dhabi and thereafter, returned back with the bangles, which were worn by her. 6. He would also submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sum of Rs. 7,60,903.20. 12. Further, at paragraph 8 of the counter affidavit, by referring the Frequently Asked Questions (FAQ), the respondents had contended with regard to the obtaining of Export Certificate, which reads as follows: "Outgoing Passengers: Question: What should you do when you leave India for abroad? Answer: All the passengers leaving India are subject to clearance by Custom Authorities. Only bonafide baggage is allowed to be cleared by passengers. There is a procedure prescribed whereby the passengers leaving India can take the Export Certificate for various high value items such as camera, video camera as well as jewelery, from the Customs authorities. Such an Export Certificate facilities re-importation of such goods while bringing back the things to India as not duty is charged. The advantage of having the Export Certificate is that the concessions you are entitled to, when you return are not affected. and Question.26. What are the norms for re-import of personal jewellery carried with the passenger? Answer: All the passengers leaving India are subject to clearance by Custom Authorities. Only bonafide baggage is allowed to be cleared by passengers. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Baggage Rules, 2016, is wider than the definition of "Baggage" under Section 2(3) of the Customs Act, 1962. Though the said Rule has been made beyond the scope of the Statute, the Court has no occasion to deal with the aspect of the scope of the Rule with regard to the inclusion of the word "carried on the person" in the Baggage Rules, 2016. Therefore, he would submit that when a person worn the jewelery, the Baggage Rule will not apply since the same is beyond the scope of the Act. Hence, he would submit that the detaining of gold under the said Rule is contrary to the provisions of the Act. 19. Further, he would submit that it is not the case of the respondents that the petitioner has secreted the gold, for which the search has to be conducted. The gold bangles were openly worn by the petitioner only for the purpose of attending a marriage, which is the customs of our Country. Normally, it is their proprietorial rights to wear jewels for a marriage function and it cannot be questioned. With that idea only, the Parliament has not enacted anything with regard to the "personal effects". However, by virtue of definition in Rule 3 of the Baggage Rules, 2016, the Central Government h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the definition of "Baggage" for the purpose of Baggage Rules, 2016 is wider than the definition of "Baggage" under Section 2 (3) of the Customs Act, 1962." 26. Though the Hon'ble Division Bench has arrived at the above conclusion that the definition of "baggage" under the Baggage Rules, 2016 is wider than the definition of "baggage" under the Customs Act, 1962, it had no occasion to deal with the aspect as to whether the Baggage Rules, 2016, can override the Statute (Section 79 of the Customs Act, 1962), since no issue was framed and no arguments were made on that aspect. 27. In the present case, the learned counsel appearing for the petitioner has made arguments on the aspect that Rule 3 of Baggage Rules, 2016, is beyond the scope of the provisions of Section 79 of the Customs Act, 1962 (Act). Therefore, this Court is bound to answer with regard to the aspect as to whether the Rule is beyond the scope of the Statute (Section 79 of the Act), in which case, at what extent, the Rules can be followed has to be determined by this Court in the present case. 28. At this juncture, it would be apposite to extract Section 79 of the Customs Act, 1962, which reads as follows: 79. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and the maximum total value of all the articles which may be passed free of duty under clause (b) of sub-section (1); iii) the conditions (to be fulfilled before or after clearance) subject to which any baggage may be passed free of duty. 31. From the reading of the above, it is clear that the Act enables the Central Government to make the Rules only with regard to the baggage. At this juncture, it would be apposite to extract the definition of baggage under the Act, which reads as follows: Section 2(3) of the Customs Act: (3) "baggage" includes unaccompanied baggage but does not include motor vehicles; 32. A reading of the above definition would show that baggage includes unaccompanied baggage and does not include motor vehicles. At this juncture, it would also be apposite to extract Rule 3 of the Baggage Rules, which reads as follows: "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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re carried on the person and hence, the inclusion of the word "carried on the person" is beyond the scope of the provisions of Section 79 of the Customs Act. 36. When the provision of the Rule is beyond the scope of the provisions of the Act, only the provision of the Act will prevail over the Rules. Thus, the word "carried on the person up to Rs. 50,000/-" is clearly beyond the scope of the Act and it cannot be given any effect since it is contrary to the provisions of the Statute. Thus, it has to be construed only for the articles, which have not been mentioned in Annexure-1 and carried in the accompanied baggage of a passenger. In such case, the application of Baggage Rules, 2016, would not arise. Thus, the jewelery worn by the passenger will not fall within the provisions of the Baggage Rules, 2016. 37. On the other hand, if anyone worn any unreasonable amount of gold or jeweleries, they shall be brought under search, however, in the present case, it is not so. In India, as per our customs, it is normal to wear 10 nos. of bangles for a marriage function. In such case, it is for the Officers to apply their mind while detaining the gold. If 10 nos. of chains were worn by a pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... With regard to the above aspect, in the judgment of the Hon'ble Apex Court rendered in Naresh Chandra Agarwal vs. Institute of Chartered Accountants of India and others reported in 2024 SCC OnLine SC 114, it has been held as follows: "35. From reference to the precedents discussed above and taking an overall view of the instant matter, we proceed to distil and summarise the following legal principles that may be relevant in adjudicating cases where subordinate legislation are challenged on the ground of being 'ultra vires' the parent Act: (a) The doctrine of ultra vires envisages that a Rule making body must function within the purview of the Rule making authority, conferred on it by the parent Act. As the body making Rules or Regulations has no inherent power of its own to make rules, but derives such power only from the statute, it must necessarily function within the purview of the statute. Delegated legislation should not travel beyond the purview of the parent Act. (b) Ultra vires may arise in several ways; there may be simple excess of power over what is conferred by the parent Act; delegated legislation may be inconsistent with the provisions of the parent Act; th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary." [Emphasis supplied] 18. In Supreme Court Employees Welfare Association vs. Union of India [1989 (4) SCC 187], this Court held that the validity of a sub-ordinate legislation is open to question if it is ultra vires the Constitution or the governing Act or repugnant to the general principles of the laws of the land or is so arbitrary or unreasonable that no fair-minded authority could ever have made it. It was further held that Rules are liable to be declared invalid if they are manifestly unjust or oppressive or outrageous or directed to be unauthorized and/or violative of general principles of law of the land or so vague that it cannot be predicted with certainty as to what it prohibited or so u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces. Delegated legislation permits utilization of experience and consultation with interests affected by the practical operation of statutes." [Emphasis supplied] 46. In the above cases, the Court had held that a Rule Making Authority has to make the Rules within the scope of the parent Act and no Rules shall exceed beyond the scope of the parent Act since it would amount to ultra vires. Thus, in the present case, the Baggage Rule, 2016 will apply only to the baggage and the Rule made to the extent that the article "carried on the person" will not include baggage, which was in excess of powers conferred by the Rule making Authority and would amount to ultra vires. Therefore, the jewellery worn in person will not come under the purview of baggage. 47. In the case on hand, the 10 nos. of bangles were admittedly worn by the petitioner and on the request of respondents it was handed over to them. Normally, in our country any person will worn this quantity of gold for a marriage and hence, in such case, it appears to be just and reasonable. All these aspects have to be taken into consideration by the respondents. However, since the Baggage Rule, 2016, includes the articles carried ..... X X X X Extracts X X X X X X X X Extracts X X X X
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