TMI Blog1968 (10) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... maller 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". The respondent thereafter left for Bombay from where he returned on August 24, 1967 on which date he was to fly by an Air France flight leaving New Delhi at night. Before his departure, the respondent requested for return of the diamonds as he was leaving India but they were not delivered back or released. The respondent, therefore, did not leave by Air France flight and approached the appellants again on the following day for delivery of the diamonds. The diamonds were not returned but in the evening the respondent's statement was recorded. On August 26, 1967 a Panchanama was prepared where-in it was stated, inter alia, "since the diamonds which were detained for re-export on August 14, 1967 vide D.R. No. 1372/88 are liable for confiscation under the Customs Act, 1962 (No. 52 of 1962), the diamonds are accordingly seized under section 110 of the same Act". A demand for return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of or in the luggage accompanying the tourist, that there is no reason to fear abuse, and that these personal effects are exported by the tourist on his leaving India for a foreign destination. The explanation to this clause defines "personal effects" as meaning all clothing and other articles which a tourist may personally and reasonably require including inter alia, personal jewellery but excluding all merchandise imported or commercial purposes. 5. There is no doubt that the diamonds in question are in such quantities and are of such value that they cannot be described as "personal jewellery" which is included in the term "personal effects" as defined by this explanation and that being so, they can be treated only as merchandise. These diamonds must, therefore, be treated as goods import whereof or an attempt to import which would make them liable to confiscation under clause (d) of Section 111 and liable to seizure under sub-section (1) of Section 110 of the said Act. 6. The main contention of the appellants is that these diamonds are not "baggage" within the meaning of Sections 77 and 80 and with the Tourist Baggage Rules, 1958 and therefore, the retention receipt issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 80 of the Customs Act. If `baggage' in Section 80 of this Act means only `bona fide baggage' as contemplated by clauses 3 of the Tourist Baggage Rules, 1958, there will hardly be any occasion for the application of Section 80 of the Customs Act. I am, therefore, of the opinion that `baggage' has to be given the larger and ordinary meaning. 10. Section 80 talks of `any article' which is dutiable or the import of which is prohibited and the expression `any article' is comprehensive enough to include an article which is not a part of bona fide baggage as contemplated by Section 79 or `personal effects' as specified by clause 3 of the Tourist Baggage Rules. It may be contained in the baggage of a passenger. If the passenger declares such an article under Section 77, he may still import it if he is prepared to pay the duty and if its import is not prohibited. If the passenger is not prepared to pay the duty and/or cannot produce the requisite import licence, he will not be allowed to clear it for import. In such a case, he may make a request to the proper officer to detain such article for the purpose of being returned to him on his leaving India. It does not matter if the articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision like the second proviso to the notification dated November 8, 1962. It is relevant to mention that it was conceded on behalf of the State of Maharashtra `that if the exemption notification which applied to the present case was that contained in the notification of the Reserve Bank dated August 25, 1948 the respondent had not committed any offence since (a) he was a through passenger from Geneva to Manila as shown by the ticket which he had and the manifest of the aircraft, and besides (b) he had not even got down from the plane'. It was, therefore, by reason of the second proviso that it was held by the Supreme Court `that the proper construction of the term `cargo' when it occurs in the notification of the Reserve Bank is that it is used as contradistinguished from personal luggage in the Law relating to the carriage of goods'. In the absence of a similar provision under the Customs Act or in the Tourist Baggage Rules, 1958, I do not find it possible to accept the contention of the appellants that `baggage' used in Section 80 of the Customs Act means only personal baggage or bona fide baggage under Section 79 of personal effects under clause 3 of Tourist Baggage Rules. I ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation to clause 3 of the Tourist Baggage Rules which excludes only such merchandise from the term `personal effects' as is imported for commercial purposes. The object of Section 80 is to exclude any article from the purview of Section 110 and 111 if a declaration is made under Section 77 and the article is entrusted to the proper officer. If the article is so entrusted there are no commercial purposes which can be achieved. In my view, therefore, there is no import within the meaning of the Customs Act in a case where the goods are entrusted under Section 80 and are not carried by the passenger beyond the customs barrier. Reliance has been placed by the appellants upon an unreported decision of a learned Single Judge of the Madras High Court which was delivered on February 7, 1968 in writ petition No. 1924 of 1967 in re : A. Shaukataly v. The Collector of Customs, Madras. In that case no declaration was made under Section 77 by the passenger. In fact, it appears from the judgment that the passenger did not ask that the brief-case containing precious stones should be bonded. It further appears that the passenger came out with a request for bonding only after the cloth bags contain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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