TaxTMI 
TaxTMI 
TaxTMI 
2025 (2) TMI 384
X X X X Extracts X X X X
X X X X Extracts X X X X
....ples in Tamil Nadu, as it is their custom and tradition. The 2nd petitioner is the daughter-in-law of the 1st petitioner and she was newly married to one Jeyakanth/son of the 1st petitioner. The 3rd petitioner is the daughter of the 1st petitioner. The details of the family members, who had arrived at Chennai on 30.12.2023, are as follows: S.No Name Age Relation to petitioner 1 Arasu Inbamathi 60 1st petitioner 2 Thanushika 30 2nd petitioner 3 Kirushalini 39 3rd petitioner 4 Abilin Reegan 8 5 Akshara Reegan 6 6 Arush Reegan 4 Children of 3rd petitioner 3. While passing the customs, the officials of the respondent had checked their belongings and questioned about their gold ornaments totally weighing about 288 grams. When the enquiry was conducted, the petitioners replied that 2nd petitioner had got married and going to France after their planned pilgrimage in Tamil Nadu and she has also showed the return ticket to France to the officials. 4. However, the customs officer did not accepted their statements and started to treat the petitioners and the 3 children in an arrogant manner and ordered the 2nd petitioner to remove her Thaalikodi ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at the jewels, which are their personal property, are not subject to any irregularities and the same is not in violation of any law. The petitioners are also ready to undertake and expressed her willingness to abide by any condition laid down by the respondents. The details of the jewels are as follows: S.No Name of the person Age of the person Relation to petitioner Grams of gold detained from them Grams of gold as recorded by the respondent 1 Arasi Inbamathi 60 1st petitioner 80 78 2 Thanushika 30 2nd petitioner 140 166 3 Kirushalini 39 3rd petitioner 44 44 4 Abilin Reegan 8 Children of 3rd petitioner 24 (8 grams each) Nil 5 Akshara Reegan 6 6 Arush Reegan 4 Total 288 9. He would contend that though the respondents had referred the Baggage Rules, 2016, in their counter, the provisions of the said Baggage Rules will not apply in the present case. In this regard, he referred the provisions of Section 79 of the Customs Act, 1962 and submit that the Baggage Rules, 2016, is beyond the scope of said Section 79 of the Customs Act. 10. Further, he would submit that in the present case, the allegations of the peti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oms Act, 1962, under separate Mahazar proceedings conducted on 30.12.2023. 15. Further, he referred the Baggage Rules, 2016 and would submit that since the baggage, carried by the petitioners, is non-bonafide and they are not permitted to carry the gold either in person or in baggage as per the Baggage Rules, 2016, the proceedings were initiated against the petitioners and when they tried to pass through green channel with an intention to smuggle, they were stopped and further actions were taken. Under these circumstances, the petitioners have to prove before the Adjudicating Authority as to how their jewels are not liable for confiscation, which requires appreciation of evidence especially as to why the petitioners did not declare the jewels with the Authorities and as admitted by their in the statement recorded under Section 108 of the Customs Act, 1962, if they brought it for monetary consideration. 16. Further, he had referred the judgment of the Hon'ble Division Bench of this Court rendered in CMA.No.1716 of 2020 [The Principal Commissioner or Customs vs. Ahamed Gani Natchiar] dated 01.09.2022, wherein it was held that the Baggage includes the "personal effects" and requ....
X X X X Extracts X X X X
X X X X Extracts X X X X
...."thaalikodi" up to 16 soverign, in such case, it would be normal for any middle class family to wear "thaalikodi" weighing around 11 sovereigns. 21. It was also found by the officials that the 2nd petitioner was wearing gold bangles weighing 45 grams. As per our customs, it is normal for a newly married person to wear the aforesaid quantity of gold while travelling. When the officers are conducting search, they have to respect the customs of every religion of this Country. In such case, it is very unfair on the part of the officials to remove the "thaalikodi" from the 2nd petitioner, who is yet to start her marriage life with her husband at France in the last week of January, 2024. 22. Further, in the present case, though they have stated that the proceedings were conducted in the respectful manner, there is no specific denial from the respondent for the averments made by the petitioners in their affidavit. It is a well settled law that when the averments in the petition were not denied specifically, it would amount to deemed to be admitted on the part of the respondent. In the present case, the following averments were not denied specifically by the respondent in his counter dat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ounter dated 23.07.2024 except the general and bald denial of the averments in the writ affidavit of the petitioner. There was no specific denial to the above averments made against the respondents. It is a settled law that if the allegations raised against the respondents have not been specifically denied by them in their counter, it will be deemed to be admitted. 24. The term "Counter Affidavit" by its nomenclature describes that it is a counter to the affidavit filed in support of the writ petition. It denies the averments contained in the affidavit and at times there may be concessions in the counter affidavit too. When specific allegations are raised in the affidavit, they have to be specifically denied or refuted in the counter affidavit. Mere bald denial or the catch phrase "All allegations are denied in entirety except those specifically admitted herein" would not absolve the deponent of the counter affidavit. When an affidavit contains a positive averment of facts or other details, the counter affidavit should explain as to why such a fact or detail pleaded in the affidavit ought not to be accepted. 25. It is apposite to point out that the Writ Rules, 2021 were made by t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r affidavits, reply affidavits and other affidavits. Therefore, Rule 6(2) mandates that the affidavit should set forth (a) facts leading to the filing of the Petition; (b) facts giving jurisdiction to the High Court to entertain the Petition; (c) the grounds, in case of a Writ Petition; and (d) the interim relief, final relief, it is obligatory on part of the deponent of the counter affidavit to specifically deny the averments raised. 28. When several allegations, against the 2nd respondent/Mythili and her subordinates, have been raised in the affidavit of the petition and the counter affidavit did not contain anything to specifically deny allegation/averments, which were made against the respondents except the general and bald denial, then it leads to the conclusion that the respondent or the deponent has not successfully denied the allegation. What applies to a deponent of an affidavit as per the rules applies to a deponent of the counter affidavit too. 29. In terms of Section 58 of the Evidence Act, 1872, if there is no specific denial of averments or allegations raised against any party, the same shall be considered as deemed to be admitted. Further, in the case of Ch....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... on her hand concealed in her full sleeves also found worn." ii) At paragraph No.3 of the confiscation order, it has been stated that "during the search of her baggage, nothing was found. Thereafter, upon search of her person, 3 nos of yellow coloured metal chains and 2 nos of yellow colour metal bangles were found from her sleeves of shirt and the same was recovered." iii) At paragraph No.11 of the confiscation order, it has been stated that "I find that the passenger had not declared the possession of gold in spite of repeated enquiry and only after search of her person, 3 nos. of gold chains and 2 nos. of gold bangles was recovered from under her clothes." 34. The above 3 statements, which were recorded in the confiscation order, shows three different version, i.e., in the 1st place, it has been stated that the jewels were worn on her concealed in her full sleeves, in the 2nd place, it has been stated that metal bangles were found from her sleeves and in the 3rd place, it has been stated that the jewellery were recovered from under her sleeves. 35. Further, in the confiscation order passed against the 3rd petitioner, it has been recorded as follows: i) At paragraph No.1 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ith the aspect of jurisdiction of the Officers to frame charges against the petitioners based on the Baggage Rules, 2016. In this regard, an order of this Court rendered in CMA.No.1716 of 2020 has been referred by the learned Senior Standing counsel for the respondent. In the said judgment, the Hon'ble Division Bench of this Court has framed an issue as to whether the jewelery worn on the person would constitute "Baggage". 42. The Division Bench had answered the issue by plain reading of the Baggage Rules, 2016 and arrived at a conclusion that in terms of Rule 3 of the Baggage Rules, 2016, the jewelery worn by the passenger, who had arrived from abroad would be considered as "Baggage". However, in the same judgment, the Hon'ble Division Bench has held that 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. The relevant portion of the judgment is as follows: "A reading of the definition of "Baggage" under the Customs Act, 1962 and the Baggage Rules would appear to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fore or after clearance) subject to which any baggage may be passed free of duty. (3) Different rules may be made under sub-section (2) for different classes of persons. 46. A reading of the above provisions would show that the proper officer may subject to any Rules made under Sub-Section (2), if any article in the baggage of a passenger or a member of the crew in respect of which the said officer is satisfied that it has been in his use for such minimum period as may be specified in the rules. 47. Thus, it states that for any article in the baggage of a passenger in respect of which the said officer is satisfied that it is for the use of the passenger or his family or is a bona fide gift or souvenir; the total value of all such articles does not exceed such limits as may be specified in the Rules. Hence, Section 79 talks about "anything in the baggage". For the purpose of carrying out the provisions of this Section, the Section 79(2) enables the Central Government to make the Rules as follows: i) The minimum period for which any article has been used by a passenger or a member of the crew for the purpose of clause (a) of sub-section (1); ii) the maximum value of any indiv....
X X X X Extracts X X X X
X X X X Extracts X X X X
....es, 2016, makes it clear that the definition of "baggage" under the Baggage Rules is wider than the definition of "baggage" under the Customs Act. Further, in the Rule it has been stated 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) used personal effects and travel souvenirs; and (b) articles other than those mentioned in Annexure-I, upto the value of fifty thousand rupees if these are carried on the person or in the accompanied Baggage of the passenger: 51. From a perusal of above provision, it is clear that the Clause (b) includes the articles other than those mentioned in Annexure-I, upto the value of fifty thousand rupees if these are 'carried on the person' or in the accompanied Baggage of the passenger 52. The Customs Act, 1962, enables the Central Government to make Rules to the extent of the articles carried in the baggage of a passenger and not for the articl....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... purview of the Statute. 57. In the present case, the Rule making body had made the Baggage Rules as if they are having inherent power of its own to make rules beyond the scope of the Statutes, and they have incorporated the word "carried on the person" as referred above. 58. The ultra vires may arise in several ways such as :- a) there may be a simple excess of power over what is conferred by the parent Act; b) the delegated legislation may be inconsistent with the provisions of the parent Act; c) there may be non-complaince with the procedural requirement as laid down in the parent Act. In all the above situation, it is the function of the Court is to keep all the Authorities within the confines of the law by supplying the doctrine of ultra vires. 59. In the present case, admittedly, the Rule making Authorities made the Rules by traveling beyond the scope of the Act, which would amount to ultra vires. In such case, the Statute would prevails over the Rules. When such being the case, the Statute referred only with regard to the baggage and therefore, the Rule has to be confined and read only with regard to the baggage and not with regard to the articles "carried on the p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nother vs. P.Krishnamurthy and others reported in (2006) 4 SCC 517, it has been held as follows: 16. The court considering the validity of a subordinate Legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate Legislation conforms to the parent Statute. Where a Rule is directly inconsistent with a mandatory provision of the Statute, then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or non- conformity of the Rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the Parent Act, the court should proceed with caution before declaring invalidity. 17. In Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India [1985 (1) SCC 641], this Court referred to several grounds on which a subordinate legislation can be challenged as follows: "75. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....TE [2003 (3) SCC 321], this Court explained the scope and purpose of delegated legislation thus : "A regulation is a rule or order prescribed by a superior for the management of some business and implies a rule for general course of action. Rules and regulations are all comprised in delegated legislations. The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. Rules cannot be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up details. The legislature may, after laying down the legislative policy confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of policy. The need for delegated legislation is that they are framed with care and minuteness when the statutory authority making the rule, after coming into force of the Act, is in a better position to adapt the Act to speci....