1992 (1) TMI 132 - CGOVT - Customs

Government sets aside Order-in-Appeal, reinstates Order-in-Original. Section 77 declarations mandatory.

The government's decision set aside the Order-in-Appeal and restored the Order-in-Original passed by the Deputy Collector, emphasizing the mandatory ... Baggage - Precedents Issues Involved:1. Validity of the respondent's declaration under Section 77 of the Customs Act, 1962.2. Applicability of Rule 7(2) of the Tourist Baggage Rules in the context of Section 77.3. Legitimacy of the Collector (Appeals) decision allowing re-export and reducing penalties.4. Interpretation of the judgments in Lakshmi Devi Kumar and Meera Datta cases.5. The respondent's actions and intentions regarding the goods carried.Issue-wise Detailed Analysis:1. Validity of the respondent's declaration under Section 77 of the Customs Act, 1962:The respondent, a Syrian national, arrived in India and walked through the green channel without making a declaration. The government noted that the respondent's claim of having reported at the red channel counter was unsupported by evidence and deemed an afterthought. The undisputed fact was that he was intercepted at the exit gate after walking through the green channel, indicating a failure to declare the goods as required under Section 77. The government emphasized that the declaration under Section 77 is mandatory and does not require a written form unless invited by a customs officer. The act of walking through the green channel itself is a declaration of carrying no dutiable goods.2. Applicability of Rule 7(2) of the Tourist Baggage Rules in the context of Section 77:The government clarified that Rule 7(2) of the Tourist Baggage Rules requires customs officers to provide a list of high-value items upon arrival, but this is contingent upon the passenger making a truthful declaration under Section 77. The government rejected the interpretation that a customs officer must individually invite passengers to declare their goods, stating that the onus is on the passenger to declare dutiable goods. The government concluded that Rule 7(2) is subject to the provisions of Section 77, and any interpretation repugnant to Section 77 should be eschewed.3. Legitimacy of the Collector (Appeals) decision allowing re-export and reducing penalties:The Collector (Appeals) allowed the goods to be re-exported on payment of a fine and reduced the personal penalty. The government found this decision erroneous, stating that the respondent's plea of wanting to declare the goods was rightly rejected by the Deputy Collector. The government held that the goods, including 3000 pcs. of key rings and a gold chain, could not be considered bona fide baggage and were clearly in the nature of trade and commercial goods. The government restored the original order of absolute confiscation and penalties imposed by the Deputy Collector.4. Interpretation of the judgments in Lakshmi Devi Kumar and Meera Datta cases:The government disagreed with the Tribunal's reliance on the judgments in Lakshmi Devi Kumar and Meera Datta cases, stating that these judgments were not in line with the legal provisions. The government emphasized that the statutory provision of an Act (Section 77) overrides the Rules (Rule 7(2)). The government also highlighted a recent judgment by the Delhi High Court in the case of Smt. Jasvir Kaur, which supported the view that re-export cannot be claimed as a right and that tourists must comply with the rules and regulations.5. The respondent's actions and intentions regarding the goods carried:The government noted that the respondent's actions, including walking through the green channel and carrying goods that were clearly trade and commercial in nature, raised doubts about his intentions. The government's decision was influenced by the respondent's failure to make a truthful declaration and the nature of the goods carried. The government concluded that the respondent's plea to re-export the goods was not justified and that the original order of confiscation and penalties should be upheld.Conclusion:The government's decision set aside the Order-in-Appeal and restored the Order-in-Original passed by the Deputy Collector, emphasizing the mandatory nature of declarations under Section 77, the limitations of Rule 7(2) of the Tourist Baggage Rules, and the respondent's failure to comply with the legal requirements. The revision application filed by the respondent was also rejected.