TaxTMI 
TaxTMI 
2009 (7) TMI 161
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....petitioner is the recognised subsidiary in terms of the licence, authorised to operate the shops. The petitioner has obtained a licence under Section 58(1) of the Customs Act, 1962, to operate as a private bonded ware house for the storage of goods brought from abroad, to be sold to transit international passengers against approved foreign currency. The petitioner's place of business is inside the airport premises at the international departure and arrival terminals. The petitioner's shops consist of two units, one selling goods to outgoing international passengers alter they have passed out of the customs post. The other selling goods to incoming international passengers, before they pass through the customs post. Hence, the outgoing passengers purchase the goods after they have crossed the customs frontier and such goods are not brought into India. And the incoming passengers, after the purchase of goods, import the same into India when they pass through after obtaining clearance from the customs authorities. It is the petitioner's case that the transactions are in respect of specified goods and subject to the following :- (a) ....
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..... The second respondent however, obtained an undertaking from the petitioner's representative to produce the packages as and when required and would be retained in the petitioner's safe custody. The petitioner had thereafter raised its objections writing and submitted in respect of the inspection and deferred seizure that the goods at the shop in the departure terminal could not be said to be imported goods as they had never become part of the "mass of goods" within the country. The respondent however has ignored the same and passed an order dated 4-10-2007 and has held that the goods referred to herein above ought to have been affixed with declarations of the name and address of the importer, month and year of import as well as quantity and hence, was in violation of the Packaged Commodities Rules and an offence under the SWM Act, and the petitioner was called upon to compound the offences. It is the above action of the second respondent which is sought to be challenged in the present petition. 3. The Counsel for the petitioner Ms. Pritha Srikumar contends as follows : That the goods sold by the petitioner are not imported goods. The definition of the expression ....
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....to change the packaging. The petitioner has no control over the packaging. The insistence of the authorities to comply with the provisions of the Act and Rules - when the same do not apply to the goods and it is physically not possible for the petitioner to comply - The petitioners would be prevented from carrying on business under a constant threat of seizure for alleged contravention of law. 4. On the other hand, Shri Ashok Haranahalli, the Advocate General appearing for the respondents contends as follows :- That the commodities which were seized by the respondents were kept for sale in premises located at BIA within the State. "Premises" as defined under the SWM Act includes a ware house or other place where goods are exhibited, it follows that any pre-packed commodity requires to carry all mandatory declarations required under the SWM Act and Packaged Commodities Rules. It is contended that the above Act and Rules are intended to protect the interest of a consumer within the State and any goods offered for sale - whether inside the premises of the BIA or elsewhere which would fall within the definition of premises would require to conform to the same. It is contend....
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..... Hence, the same interpretation ought to be adopted in the absence of any difference in wording. It is asserted that the contention as the definition of "import" under the Customs Act was for the sake of fixing the rate of customs duty to be imposed, is also not correct, in the light of the fact that what arose for consideration in the Garden Silk Mills case, supra, was the meaning of import as found in Section 12 of the Customs Act and not Sections 14 and 15 thereof. It is contended that under the SWM Act import does not mean the goods merely being brought into the country. As for instance, goods which are sold by the petitioner from its Duty-fee shop at the departure terminal would have to be treated as imported although they have not been cleared through customs. And the same will also be required to be repackaged to comply with the Packaged Commodities Rules even though the same are not imported. Insofar as the contention that no inconvenience would be caused to the petitioner to mechanically comply with the Act and Rules, it is sought to be pointed out that the petitioner being required to perform obligations imposed upon importers does not arise when the petitioner is ....
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....ods in the Duly-free Shops of the petitioner, in the departure and arrival terminals of the BIA,. are imported goods. In this context, the meaning to be given to import as contemplated under the Act would assume significance. As pointed out by the Counsel for the petitioner, the definition of the expression, both under the Customs Act, and the SWM Act is identical. Hence, the meaning as judicially interpreted, can only be the same for both the Acts unless the Statute expresses otherwise. It is the settled position of law that import is complete only when the goods have crossed the customs barrier and on the mixing of goods with the mass goods within the country. In the instant case on hand, the import is completed when the incoming passenger purchasing the goods clears it through customs and brings it into the country And in the departure terminal the goods are not imported because the outgoing passenger takes the goods to a foreign country. The goods are transhipped and not imported at all. Rule 6 and Rule 35 of the Packaged Commodities Rules which are applicable to imported goods will not apply to the goods of the petitioner, The said Rules would apply only to goods that have bee....