TaxTMI 
TaxTMI 
2025 (4) TMI 193
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....n origin, which are being dealt with by the Court today. I. Background 3. The present petition is the lead matter wherein vide order dated 13th January, 2025, this Court had noticed that various travellers, tourists, Indian citizens coming back from foreign countries were being intercepted and various items which they were wearing including jewellery etc., were being detained. The Court had then considered the Baggage Rules, 2016 (hereinafter the "Baggage Rules") and the Indian Customs Declaration Form as also the Guide for Travellers, prepared by the Central Board of Indirect Taxes & Customs (hereinafter "CBIC") and had observed that the Baggage Rules are quite outdated and archaic considering the increase in price of gold in the last several years. The Baggage Rules date back to 2016 i.e., the Rules are more than nine years old and considering the present market realities, the Baggage Rules need a re-look. Accordingly, the Court had then passed the following directions:- "14. The ld. Counsel for the Customs Department also points out that there are many cases, wherein it is seen that travellers are undertaking frequent travel almost every week or two weeks, with th....
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....ewellery from tourists, either of Indian or foreign origin, and the directions passed by this Court in Qamar Jahan (supra) to the Central Board of Indirect Taxes (hereinafter "CBIC") to reconsider the Baggage Rules, the Court deems fit to pass the following directions for the interim period till the CBIC has reconsidered the Baggage Rules: i. Detention receipt should contain contact details of the tourist including email address and mobile/ WhatsApp number; ii. Coloured images of the gold ornaments/ jewellery detained from the tourist should be attached to the detention receipt; iii. Copy of the said images should be provided to the concerned tourist and the same shall also be retained on record of the Customs Department. 29. The above directions shall be followed henceforth by the Customs Department in all cases where jewellery is seized or detained from tourists of either Indian or foreign origin. 30. Let the said directions be also taken into consideration by the Chairman, CBIC while reconsidering the Baggage Rules pursuant to the directions passed by this Court in Qamar Jahan (surpa). 6. Further, in Amit Kumar vs. Commissioner of ....
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....n Makhinder Chopra (supra) are as under: "17. A conspectus of the above decisions and provisions would lead to the conclusion that jewellery that is bona fide in personal use by the tourist would not be excluded from the ambit of personal effects as defined under the Baggage Rules. Further, the Department is required to make a distinction between 'jewellery' and 'personal jewellery' while considering seizure of items for being in violation of the Baggage Rules." 18. At this stage, it would be apposite to refer to the judgement of the Madras High Court in Thanushika vs. The Principal Commissioner of Customs (Chennai), W.P. No. 5005/2024 (decided on 31st January, 2025) wherein the High Court was dealing with a case where the gold jewellery of a Sri Lankan tourist was seized by the Customs Department. The High Court after analysing the various provisions of the Act and the Baggage Rules has held that the said Rules would only apply to baggage and would not extend to any article "carried on the person" as mentioned in Rule 3 of the Baggage Rules. The relevant portion of the said judgement is extracted hereinunder: "50. From a perusal of above provision, it is....
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....same would not fall within the purview of the Baggage Rules, 2016. * * * * 56. 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. 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 person" * * * * 62. 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 ....
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....cumstances and in such manner as may be prescribed." 25. A perusal of the above Section would show that the principles of natural justice have to be followed by the Customs Department before detention of the goods. The Section provides a three-fold requirement: i) a notice in writing informing the grounds of confiscation; ii) An opportunity of making a representation in writing against the said grounds of confiscation; iii) A reasonable opportunity of personal hearing. 26. In terms of proviso to the said Section, the Customs Authority may issue an oral show cause notice to the tourist in lieu of a written show cause notice at the request of the said tourist. However, in the opinion of the Court the undertaking in a standard form as relied upon by the Customs Department waiving the issuance of show cause notice and personal hearing would not satisfy the requirements of Section 124 of the Act. xxx xxx 33. At this stage, it is noted that this Court has in Qamar Jahan v. Union of India, Represented by Secretary, Ministry of Finance & Ors. 2025:DHC:174-DB has directed the Central Board of Indirect Taxes and Customs (hereinaf....
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....e required for the same. In the meantime however certain measures are being implemented. III. Interim Measures by the Customs Department 13. It is submitted by the ld. Counsels for the Customs Department that taking into consideration various orders which have been passed by this Court, some changes are being effected on the following aspects:- Detention Receipts: i. In detention receipts, henceforth, the Court is informed that the following particulars shall also be obtained at the time of issuing the detention receipts so that communication with the concerned passenger becomes easy for the Customs Department. The said details are as under:- a) Details of the passenger. b) Phone number. c) Whatsapp number. d) Email address. e) Complete residential address. ii. In addition, the detention receipt would also have the number of items seized and the net weight of the said items. iii. On the detention receipt, the time and date of detaining the goods shall be mentioned. iv. The names and signatures of the passenger shall be obtained on the detention receipt. v. The names and signatur....
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....r to avoid improper service to parties and to avoid ex-parte proceedings, it is incumbent that service of notices, communications and orders ought to be effected even through email and on the common portal, in addition to the traditional methods as per Section 153. Let the present order be communicated to the Chairman, Central Board of Customs and Indirect Taxes by the Ld. Standing Counsel (Customs) so that the mandate of the provision of Section 153(b) and (c) for communication of notices, orders etc., by email as also uploading on the Directorate General of Foreign Trade (DGFT) common portal can henceforth be given effect to." 18. In compliance with the above directions, once the adjudicating order is passed, the same shall be communicated on the email address of the passenger and on Whatsapp number, with a clear note that the passenger is free to challenge the same within 90 days (60 days + 30 days). The email address of the concerned Appellate Forum shall also be provided in the adjudicating order communicated to the passenger. Detention of personal effects qua travellers of foreign origin 19. Insofar as travellers of foreign origin, whether foreign passport holders or....