AI Drafter 
TaxTMI 
TaxTMI 
2025 (8) TMI 733
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.... submitted on behalf of the Petitioner that she had travelled to India for medical treatment on 16th July, 2024. Upon arrival at the Indira Gandhi International Airport, New Delhi, the Petitioner was intercepted by the concerned Customs officials and the said gold items were detained by the Customs Department. 5. After the appraisal of the gold items, the Order-in-Original was passed by the Customs Department on 26th September 2024. The operative part of the said Order-in-Original reads as under: "ORDER (i) I deny the 'Free Allowance' if any admissible to the passenger Ms Nurgozel Achilova for not declaring the detained goods to the Proper Officer at Red Channel as well to the Customs Officer at Green Channel who intercepted her and recovered the detained goods from her; (ii) I declare the passenger, Ms Nurgozel Achilova as "an ineligible Passenger' for the purpose of the Notification No. 50/2017-Cus dated 30.06.2017 (as amended) read with Baggage Rules, 2016 (as amended); (iii) I order absolute confiscation of One copper finished gold chain having average purity 989 with gross weight 132 grams having Assessable value Rs. 8,92,927/- re....
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..... Counsel for the Petitioner submits that the gold chain is her personal effect and thus, the continued detention of the same is contrary to the principles of law. 11. Heard. Photographs of the Petitioner wearing the gold chain in the past, along with her family, have been placed on record, which would show that the same is her used personal effect. The Petitioner is in fact an eligible passenger in terms of Baggage Rules, 2016 as well. Moreover, she suffers from impaired vision and had travelled to India for medical treatment. 12. In terms of Rule 2(vi) read with Rule 3 of the Baggage Rules, 2016 (hereinafter, the "the 2016 Rules") the Petitioner would be permitted clearance of articles, free of duty in their bona fide baggage, including used personal effects. The relevant provisions of the Rules are extracted hereunder: "2(vi) "Personal effects" means things required for satisfying daily necessities but does not include jewellery. * * * * 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 th....
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....t it is not permissible to completely exclude jewellery from the ambit of 'personal effects'. The relevant paragraphs of the said order read as under: "13. Insofar as the question of violation of the provisions of the Act is concerned, we are of the opinion that the respondent herein did not violate the provisions of Section 77 of the Act since the necessary declaration was made by the respondent while passing through the green channel. Such declarations are deemed to be implicit and devised with a view to facilitate expeditious and smooth clearance of the passenger. Further, as per the International Convention on the Simplification and Harmonisation of Customs Procedures (Kyoto 18-5-1973), a passenger going through the green channel is itself a declaration that he has no dutiable or prohibited articles. Further, a harmonious reading of Rule 7 of the Baggage Rules, 1998 read with Appendix E (2) (quoted above), the respondent was not carrying any dutiable goods because the goods were the bona fide jewellery of the respondent for her personal use and was intended to be taken out of India. Also, with regard to the proximity of purchase of jewellery, all the jewellery was not ....
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.... "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." 15. At this stage it would be relevant to consider the decision 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 various provisions of the Act and the Rules 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 Rule. This Court in Makhinder Chopra (supra) having considered the above decision, observed as under: "19. Thus, it is now settled law that the Customs Officials are required to consider the facts....
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....by the High Court. 3. The Special Leave Petition is, accordingly, dismissed. 4. Pending application(s), if any, stands disposed of." 18. Thus, it is now settled that used jewellery worn by the passenger, especially a foreign visitor, would fall within the ambit of personal effects in terms of the Rules, which would be exempt from detention by the Customs Department. 19. Additionally, the order-in-original in this case does not give any reason as to why the gold bracelet has been permitted to be redeemed but the gold chain has been absolutely confiscated. The same is completely illogical, inasmuch as the same logic would apply both for the bracelet and for the gold chain. The gold chain is weighing 132 grams and the bracelet is weighing 66 grams, the Petitioner was permitted to redeem the same. The detained jewellery being personal effects of the Petitioner, the detention of the same itself would be contrary to law. 20. It is further noted that no Show Cause Notice has been issued in this case as the Customs Department is relying on the standard pre-printed waiver that was obtained from the Petitioner. The validity of such pre-printed waiver of SCN and per....
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....d upon the undertaking in a standard form dated 17th June, 2024 signed by the Petitioner, wherein the Petitioner has waived of issuance of the show cause notice and personal hearing. It is an admitted position that no show cause notice has been issued to the Petitioner on the basis of the said undertaking. 24. The issuance of a show cause notice before confiscation of goods by the Customs officials is covered under Section 124 of the Act, which reads as under: "124. Issue of show cause notice before confiscation of goods, etc.- No order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such person- (a) is given a notice in writing with the prior approval of the officer of Customs not below the rank of an Assistant Commissioner of Customs, informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty; (b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein; and (c) is given a r....