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2022 (10) TMI 100
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....ge". Apart from the issue of jurisdiction of the Tribunal, the order is also challenged questioning the correctness of the order of the Tribunal interfering with the absolute confiscation made by the adjudicating authority and directing re-export of the gold involved. 2. Brief facts: a. Admittedly, the Respondent is a citizen of Malaysia. b. The Respondent travelled from Kuala Lampur and landed in India on 4th September, 2016. c. The Respondent was intercepted by a lady Customs Officer at the Chennai Airport on a reasonable suspicion that she may be carrying gold, as the Respondent was walking out through the exit after having passed through the Customs Green Channel along with her Baggage. On being questioned as to whether she was in possession of any dutiable / prohibited goods, she replied in the negative. d. The Customs authorities not being satisfied with the reply, proceeded to examine the Respondent, the Baggage was found not to contain anything incriminating. However, on a physical search of the person of the Respondent, it was found that she was wearing a gold chain and bangles beneath her closed neck and full sleeves dress. ....
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....ed that she had attempted to smuggle the gold on instruction from her son for sale in India. However, she had later retracted/ clarified stating that the recovered jewellery is her personal jewellery. The Government approved gold appraiser has certified the gold to be of 24 Carat purity which proves that she has imported the gold with an intention to sell them for monetary benefits. Hence, the claim of ownership of the gold by the respondent is only an afterthought and that the respondent had acted as a mere carrier and had brought the gold for monetary benefit. The gold was recovered by the officers only during the personal search and the same was seized under a Mahazar for non-fulfilment of the import conditions and mis-declaration. iii. That the passenger being a foreign national does not satisfy any of the conditions of Notn. No.12/2012-Cus dated 17.03.2012 as amended vide Notn. No.26/2012-Cus dated 18.04.2012 and thus not eligible to import gold. 4. Aggrieved by the above, the Respondents preferred an appeal, the Appellate Authority proceeded to confirm the order primarily on the premise that the gold recovered / seized/ confiscated from the Respondent of 24 carat ....
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....s premised on the fact that the imported gold was of 24 carat purity which is practically not possible. c. Importantly, it was found that there was nothing on record to establish that the import of gold jewellery is prohibited either under the Customs Act, 1962 or under any other law for the time being in force. Under Section 33 of the Foreign Trade, Development and Regulation Act, 1992, it is only such goods, to which an order under Section 32 of the same Act has been issued by the Central Government, that can be deemed to be prohibited goods under Section 11 of Customs Act, 1962. No such order was on record. Therefore, the Tribunal found that it was unable to concur with the first appellate authority that the jewellery imported by the appellant is prohibited. Consequently, the confiscation under Section 111(d) of Customs Act, 1962 fails. 7. Against the above background, the following questions arise for consideration: a. Whether the Tribunal was right in rejecting the plea of the appellant herein of lack of authority/ jurisdiction of the Tribunal, in view of the fact that the issue according to the appellant relates to goods imported as "Baggage" and thus falls wit....
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....wed clearance free of duty articles in his bona fide Baggage, that is to say, (a) used personal effects and travel souvenirs; and (b) articles other than those mentioned in Annexure- I, upto the value of fifteen thousand rupees if these are carried on the person or in the accompanied Baggage of the passenger: Provided further that where the passenger is an infant, only used personal effects shall be allowed duty free. Explanation.- The free allowance of a passenger under this rule shall not be allowed to pool with the free allowance of any other passenger. " ii) Definition of Baggage under the Customs Act, 1962: "(2)(3) - "Baggage" includes unaccompanied Baggage but does not include motor vehicles; " A reading of the definition of "Baggage" under the Customs Act, 1962 and the Baggage Rules would appear to suggest that 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. 8.1. It may be relevant to note that the Baggage Rules, 2016 was introduced vide Notification No.30 of 2016-Cus(N.T.) dated 01.03.2016, prior to the above amendment it was g....
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....Respondent is a Malaysian national and therefore would not fall under any category of the passengers governed under the main part of Rule 3 of the Baggage Rules, 2016. However, the proviso to Rule 3 appears to provide for an independent/additional category of passengers viz., tourist of foreign origin not being an infant. It appears that the respondent who is a Malaysian national may be covered by the proviso to Rule 3 of the Baggage Rules 2016. Thus, the respondent is one of the categories of passengers who are governed by the Baggage Rules. 9. Having found that the Baggage Rules would cover the respondents in terms of the categories of passengers, question may still arise as to whether jewellery worn on the person of a passenger would constitute Baggage. It may be necessary for the appellant to show that not only the appellants are governed by the Baggage rules but the jewellery worn on the person would constitute "Baggage" to sustain its argument of lack of jurisdiction of the Tribunal to deal with the present issue. 10. The answer to the above question assumes relevance, for if the answer is in the affirmative the order of the Tribunal would be null and void for want of j....
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..../her goods or belongings. Section 2(22) of the Act defines the term goods to include Baggage. Having regard to the stipulations in section 77 and the definition of the term "Baggage" occurring in section 2(3) of the Act, the body of a passenger cannot be said to be Baggage. In the instant case, the gold chain was worn by the petitioner and was not carried in his Baggage. It was therefore not necessary for the petitioner to declare the gold chain worn by him. Section 80 of the Act clarifies the position. Section 80 stipulates that the Baggage of a passenger, which contains any article which is dutiable or the import of which is prohibited, may be detained at the request of the passenger for the purpose of being returned to him on his leaving India. The term Baggage thus connotes something which is distinct and different from the passenger who has brought the Baggage. Section 81 of the Act empowers the Central Board to frame regulations regarding the declaration of the contents of any Baggage, its custody, examination, assessment to duty and clearance of Baggage and transit of Baggage from one customs station to another or to a place outside India. Going by the stipulations in sectio....
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....n origin. This fact is not in dispute. Going by entry (b) in Appendix E, tourists of foreign origin, other than those of Pakistani origin coming from Pakistan, coming to India by air can be allowed clearance free of duty (i) his or her used personal effects and (ii) articles other than those mentioned in Annexure I, up to a value of Rs. 8000 for personal use of the tourist or as gifts and travel souvenirs if these are carried on the person or in the accompanied Baggage of the passenger. Annexure I referred to in Appendix E is extracted below for easy reference:- 1. Firearms. 2. Cartridges of fire arms exceeding 50. 3. Cigarettes exceeding 200 or cigars exceeding 50 or tobacco exceeding 250 gms. 4. Alcoholic liquor or wines in excess of two litres. 5. Gold or silver, in any form, other than ornaments. .......... 21. The effect of the aforesaid stipulations in Appendix E and Annexure I of the Baggage Rules, 1998 is that a tourist of foreign origin coming to India by air is not entitled to duty free clearance of firearms, cartridges of fire arms exceeding 50 numbers, cigarettes exceeding 200 or cigars exceeding 50 or tobac....
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....to constitute "Baggage", it has expressly provided for the same as in Baggage Rules, 2016. The expansive definition of "Baggage" under 2016 Rules, includes jewellery worn on the person. The above clause is in the nature of a fiction. It is trite law that once a fiction is created by the legislature it is important to give effect to the fiction and carry it to its logical end without letting the mind get bogged down by the consequences. In this regard it may be useful to note the following propositions which are well-settled rather axiomatic to appreciate the scope and purport behind creation of fiction by the legislature or its delegate: "In interpreting a provision creating a legal fiction, the Court is to ascertain for what purpose the fiction is created State (NCT of Delhi) Vs. Sanjay,(2014) 9 SCC, and after ascertaining this, the Court is to assume all those facts and consequences which are identical or inevitable corollaries to the giving effect to the fiction J.K.Cotton Spinning & Weaving Mills Ltd. Vs. Union of India, AIR 1998 SC 191. "After ascertaining the purpose, "full effect must be given to the statutory fiction and it should be carried to its logical....