2017 (8) TMI 684

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....Channel without the payment of the customs duty, the officers of the Directorate of Revenue Intelligence (DRI), Hqrs. Office, New Delhi, kept a watch on her and as soon as she was about to cross the exit gate after passing through the Green Channel, she was intercepted and was asked whether she has any dutiable item to declare to which she replied in negative. A search was conducted under Section 102 of the Customs Act, 1962 (hereinafter referred to as 'the Act') and 28 packages containing 44 items of jewellery worth Rs. 1.27 crores were recovered from two hand bags. On the very same day, the respondent was produced before the Additional Chief Judicial Magistrate and was remanded to judicial custody and she remained there till 26.11.2002. (b) On 12.12.2002, a show-cause notice was issued to the respondent by the then Assistant Director, Directorate of Revenue Intelligence, asking her to show-cause as to why the seized goods should not be confiscated under the Act. On 14.08.2003, the competent authority, passed a detailed order confiscating absolutely the new articles valued at Rs. 86,52,765/-, confiscation of seized jewellery worth Rs. 40,47,235/- with redemption clause on payme....

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....n goods upto a specified value in the case of passenger baggage but there is no exemption from making a true and correct declaration by a passenger. Further, the respondent had filed a form before she left England wherein she claimed refund of VAT which clearly indicates that she had the intention of not taking the goods back to England from where she had purchased them. Learned Solicitor General further contended that the jewellery was brought to India and attempted to be passed through the Green Channel and the respondent was responsible for smuggling the same. In fact, on return of the seized jewellery, the respondent herein directly went back to London instead of Indonesia, contrary to the assertion made before the High Court in the Writ Petition, which was held to be a ground in her favour for ascertaining her 'intention' before the High Court. Learned Solicitor General finally contended that the conduct of the respondent after release of the goods had misled the court and the judgment of the High Court on the pretext of personal effects is liable to be set aside. 6) Per contra, learned senior counsel for the respondent submitted that as per Rule 7 of the Baggage Rules 1....

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....ry allegation leveled against her. On 14.08.2003, an order was passed by the Additional Commissioner of Customs, IGI Airport, New Delhi directing confiscation of the jewellery on certain terms and conditions contained in the order. The respondent herein preferred a writ petition being No. 6633 of 2003 challenging the show-cause notice dated 12.12.2002 and the order of the Additional Commissioner dated 14.08.2003 before the High Court. The Division Bench of the High Court, vide order dated 13.09.2006 allowed the writ petition and vide order dated 04.09.2009 dismissed the review petition filed by the appellant against the order dated 13.09.2006. 8) In the above backdrop, it is relevant to quote certain provisions of the Baggage Rules, 1998 as well as the Circulars dated 24.09.1998 and 18.02.2000 issued by the Ministry of Finance which are as under:- Definitions.- "2. (iii) "tourist" means a person not normally resident in India, who enters India for a stay of not more than six months in the course of any twelve months period for legitimate non-immigrant purposes, such as touring, recreation, sports, health, family reasons, study, religious pilgrimage or business;....

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....ered bicycles, one canoe or ranges less than 51 metres long, one pair of skids, two tennis rackets, one golf set (14 pcs. With a dozen of gold balls.) (xv) One cell phone 4. It may kindly be noted that while Notn. No. 45/92 defined personal effects as articles both new or used and Rule 11 of Baggage Rules 1994 allowed personal effects of tourists for duty free import, the Baggage Rules 1998 allows only used personal effects of the tourists. It is not the intention of the Board to verify the newness of every product which a traveler brings so long as it is not prima facie new goods in their original packagings which can be disposed of off hand. (emphasis supplied by us) Sd/- (Vijay Kumar) Under Secretary to the Govt. of India F.No. 495/29/99-Cus-VI Government of India Ministry of Finance Department of Revenue, New Delhi Central Board of Excise & Customs New Delhi, the 18th Feb, 2000 Subject: Baggage Rules-Tourist baggage-no endorsement of imports of personal effects on tourists' passports 1. xxxxx 2. xxxxx 3. It may kindly be ensured that all genuine tourists are allowed to....

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.... to dutiable and prohibited goods. The accusation of not declaring the goods to the customs authority and evading duty alleged to be due thereupon has no legal basis. 10) With regard to the intention of the respondent to take back the jewellery to England is concerned, we do not think that the air ticket sought to be relied upon by the DRI is of much consequence. In the reply affidavit dated 20.10.2014 filed before this Court by the respondent herein, it has been submitted that the so called enquiry conducted by the appellant-DRI subsequent to the passing of the judgment by the High Court was admittedly done after the expiry of more than 1,185 days. The respondent herein left for London on 01.03.2007 on Jet Airways flight No. 9W-0122 and returned to Delhi on 06.03.2007 on Jet Airways flight No. 9W-0121. It has been further mentioned in the reply affidavit that the fact of return of the respondent herein to India has been deliberately concealed by the appellant-DRI. In fact, the respondent had travelled to London to attend a doctor's appointment with her daughter who was unwell at the relevant time. Further, there is no restriction in UK law which prohibits a person claiming VAT ....