TaxTMI 
TaxTMI 
2025 (2) TMI 486
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....nd, made a social visit as also attend a marriage function of one Aamir Ali, a close relative. The petitioner has filed the marriage invitation and the photos taken along with the bride and groom at Abudhabi. She undertook the visit along with her 2 children and was wearing 10 numbers of gold bangles, chain and a ring as part of her person when she left for abroad. 4. After completing her visit, when she returned to India, at International Airport, Chennai, the officer attached to 2nd respondent had detained the 10 nos. of gold bangles, which worn by her person, stating that it is the case of importation in contravention of the Baggage Rules and provisions of the Customs Act, 1962. The bangles weighing about 135 grams taken from the custody of the petitioner by the 2nd respondent's officials on 15.01.2024 under the Detention Mmemo No.18450 dated 15.01.2024. 5. The learned counsel appearing for the petitioner would further submit that the aforesaid bangles were old, which were purchased about 12 years back and she wore the bangles, chains, etc., to Abu Dhabi only for the purpose of attending friend's marriage at Abu Dhabi and thereafter, returned back with the bangles,....
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....le to pay customs duty at the rate of 44% to the value of a sum of Rs. 7,60,903.20. 12. Further, at paragraph 8 of the counter affidavit, by referring the Frequently Asked Questions (FAQ), the respondents had contended with regard to the obtaining of Export Certificate, which reads as follows: "Outgoing Passengers: Question: What should you do when you leave India for abroad? Answer: All the passengers leaving India are subject to clearance by Custom Authorities. Only bonafide baggage is allowed to be cleared by passengers. There is a procedure prescribed whereby the passengers leaving India can take the Export Certificate for various high value items such as camera, video camera as well as jewelery, from the Customs authorities. Such an Export Certificate facilities re-importation of such goods while bringing back the things to India as not duty is charged. The advantage of having the Export Certificate is that the concessions you are entitled to, when you return are not affected. and Question.26. What are the norms for re-import of personal jewellery carried with the passenger? Answer: All the passengers leaving India are subject to....
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....s 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. Though the said Rule has been made beyond the scope of the Statute, the Court has no occasion to deal with the aspect of the scope of the Rule with regard to the inclusion of the word "carried on the person" in the Baggage Rules, 2016. Therefore, he would submit that when a person worn the jewelery, the Baggage Rule will not apply since the same is beyond the scope of the Act. Hence, he would submit that the detaining of gold under the said Rule is contrary to the provisions of the Act. 19. Further, he would submit that it is not the case of the respondents that the petitioner has secreted the gold, for which the search has to be conducted. The gold bangles were openly worn by the petitioner only for the purpose of attending a marriage, which is the customs of our Country. Normally, it is their proprietorial rights to wear jewels for a marriage function and it cannot be questioned. With that idea only, the Parliament has not enacted anything with regard to the "per....
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....: "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." 26. Though the Hon'ble Division Bench has arrived at the above conclusion that the definition of "baggage" under the Baggage Rules, 2016 is wider than the definition of "baggage" under the Customs Act, 1962, it had no occasion to deal with the aspect as to whether the Baggage Rules, 2016, can override the Statute (Section 79 of the Customs Act, 1962), since no issue was framed and no arguments were made on that aspect. 27. In the present case, the learned counsel appearing for the petitioner has made arguments on the aspect that Rule 3 of Baggage Rules, 2016, is beyond the scope of the provisions of Section 79 of the Customs Act, 1962 (Act). Therefore, this Court is bound to answer with regard to the aspect as to whether the Rule is beyond the scope of the Statute (Section 79 of the Act), in which case, at what extent, the Rules can be followed has to be determined by this Court in the pre....
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....lows: 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 individual article and the maximum total value of all the articles which may be passed free of duty under clause (b) of sub-section (1); iii) the conditions (to be fulfilled before or after clearance) subject to which any baggage may be passed free of duty. 31. From the reading of the above, it is clear that the Act enables the Central Government to make the Rules only with regard to the baggage. At this juncture, it would be apposite to extract the definition of baggage under the Act, which reads as follows: Section 2(3) of the Customs Act: (3) "baggage" includes unaccompanied baggage but does not include motor vehicles; 32. A reading of the above definition would show that baggage includes unaccompanied baggage and does not include motor vehicles. At this juncture, it would also be apposite to extract Rule 3 of the Baggage Rules, which reads as follows: "3. Passenger arriving from countries other than Nepal, Bhutan or Myanmar.-An Indian resid....
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....exure-I, upto the value of fifty thousand rupees if these are 'carried on the person' or in the accompanied Baggage of the passenger 35. 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 articles, which were carried on the person and hence, the inclusion of the word "carried on the person" is beyond the scope of the provisions of Section 79 of the Customs Act. 36. When the provision of the Rule is beyond the scope of the provisions of the Act, only the provision of the Act will prevail over the Rules. Thus, the word "carried on the person up to Rs. 50,000/-" is clearly beyond the scope of the Act and it cannot be given any effect since it is contrary to the provisions of the Statute. Thus, it has to be construed only for the articles, which have not been mentioned in Annexure-1 and carried in the accompanied baggage of a passenger. In such case, the application of Baggage Rules, 2016, would not arise. Thus, the jewelery worn by the passenger will not fall within the provisions of the Baggage Rules, 2016. 37. On the other hand, if anyone worn any unreasonable amount....
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....eling 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 person". 43. With regard to the above aspect, in the judgment of the Hon'ble Apex Court rendered in Naresh Chandra Agarwal vs. Institute of Chartered Accountants of India and others reported in 2024 SCC OnLine SC 114, it has been held as follows: "35. From reference to the precedents discussed above and taking an overall view of the instant matter, we proceed to distil and summarise the following legal principles that may be relevant in adjudicating cases where subordinate legislation are challenged on the ground of being 'ultra vires' the parent Act: (a) The doctrine of ultra vires envisages that a Rule making body must function within the purview of the Rule making authority, conferred on it by the parent Act. As the body making Rules or Regulations has no inherent power of its own to make rules, but derives such power ....
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.... 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 the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary." [Emphasis supplied] 18. In Supreme Court Employees Welfare Association vs. Union of India [1989 (4) SCC 187], this Court held that the validity of a sub-ordinate legislation is open to question if it is ultra vires the Constitution or the governing Act or repugnant to the general ....
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....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 special circumstances. Delegated legislation permits utilization of experience and consultation with interests affected by the practical operation of statutes." [Emphasis supplied] 46. In the above cases, the Court had held that a Rule Making Authority has to make the Rules within the scope of the parent Act and no Rules shall exceed beyond the scope of the parent Act since it would amount to ultra vires. Thus, in the present case, the Baggage Rule, 2016 will apply only to the baggage and the Rule made to the extent that the article "carried on the person" will not include baggage, which was in excess of powers conferred by the Rule making Authority and would amount to ultra vires. Therefore, the jewellery worn in person will not come under th....