Custom, Excise & Service Tax Tribunal
Ayesha Begum vs Pr. Commissioner Of Central Tax - ... on 26 July, 2023
(1) Appeal No. C/30006/2023
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
HYDERABAD
REGIONAL BENCH - COURT NO. - I
Single Member Bench
Customs Appeal No. 30006 of 2023
(Arising out of Order-in-Appeal No.HYD-CUS-000-APP-004-22-23(APP-I), dated
29.04.2022 passed by Commissioner of Customs & Central Tax (Appeals-I), Hyderabad)
Ayesha Begum .. APPELLANT
H.No. 13-6-437/I/L,
Kareem Manzil Khader Bagh,
Mehdipatnam, Hyderabad,
Telangana - 500 008.
VERSUS
Pr, Commissioner of Central Tax .. RESPONDENT
Hyderabad - GST Kendriya Shulk Bhavan, L.B. Stadium Road, Basheerbagh, Hyderabad, Telangana - 500 004.
APPEARANCE:
Shri Shabaz, Advocate for the Appellant.
Shri A Rangadham, Authorised Representative for the Respondent.
CORAM: HON'BLE Mr. A.K. JYOTISHI, MEMBER (TECHNICAL) FINAL ORDER No. A/30198/2023 Date of Hearing:26.07.2023 Date of Decision:26.07.2023 [ORDER PER: A.K. JYOTISHI] Before the appeal is taken up by this Bench, the Learned DR raised a preliminary objection that the appeal is not maintainable before the Tribunal in terms of proviso to Section 129A and the Tribunal has no jurisdiction to decide any appeal in respect of any order passed by Commissioner(Appeals), if such order, interalia, relates to any goods imported or exported as baggage.
2. Countering this preliminary objection, the Learned Advocate for the appellant has valiantly argued that this appeal is rightfully maintainable before this Tribunal in the facts of the case and rules. He has also relied on two judgments of Tribunal namely Ahamed Gani Natchiar Vs Commissioner of Customs, Chennai [2020 (9) TMI 267 CESTAT-Chennai] and Asalam Khan Vs Commissioner of Central Excise and Customs, Central goods & Service Tax, Jaipur [2021 (1) TMI 768 CESTAT-NEW DELHI] in support of his argument that the Tribunal has the jurisdiction to hear the appeal. He has also relied on Baggage Rules 2016 to support his argument that the nature (2) Appeal No. C/30006/2023 of the goods confiscated in this case were not in the nature of baggage and therefore the Baggage Rules were not applicable and since Baggage Rules are not applicable, this Tribunal has jurisdiction to hear the appeal in the instant case.
3. On the other hand, the Learned DR has relied on various case laws in support of his argument that the matter squarely falls within the proviso to Section 129A. The confiscated goods, in this case, clearly falls within the scope of 129A proviso i.e. any goods imported or exported as baggage and therefore the appeal will not lie in the Appellate Tribunal in the case of the any order passed by Commissioner (Appeals) under Section 128A. He has relied on the following judgments:
i) Anees Fathima Bande Nawaz Vs Commissioner of Customs, AIR-CC AIRPORT, Chennai-I [2019 (365) ELT 630 (Tribunal-Chennai)]
ii) Payangadi Moidu Mohammed Ali Vs Commissioner of Customs, Chennai [2017 (357) ELT 577 (Tri-Chennai)]
iii) Prakash Chandra Shantilal Vs Commissioner of Customs, Ahmadabad [2013 (290) ELT 125 (Tri-Ahmd)]
iv) Y.R. Iyer Vs Commissioner of Customs, Ahmadabad [2010 (262) ELT 1115 (Tri-Ahmd)]
4. He has also relied on the judgment of Hon'ble Madras High Court in the case of Shri Payangadi Moidu Mohammed Ali Vs Commissioner of Appeals, The Additional Commissioner of Customs (AIR) [2017 (2) TMI 84 Madras - HC]. He further points out that in Payangadi Moidu Mohammed Ali Vs Commissioner of Appeals, Hon'ble High Court dealt with the appeal filed by the appellant, wherein the Tribunal has agreed with the objection of the Revenue that the Tribunal has no jurisdiction to entertain baggage matter for which the appellant has right to choose the Revisionary Authority, and thereafter dismissed the appeal.
5. In the order the Hon'ble High Court, interalia, observed as under:
"6. It is not in dispute that as against the order of Commissioner (Appeals-I), only a revision lies before the Joint Secretary viz., the revisional authority, but, by misconception, the appellant had approached the CESTAT and now, the CESTAT also had dismissed the appeal on the ground of jurisdiction."
(3) Appeal No. C/30006/2023
6. I have gone through the facts of the case. It is not disputed that Ms. Ayesha Begum, who arrived from Jeddah to Hyderabad by Flight No. AI 966 dated 09.02.2020 was intercepted after passing through the Green Channel. Further investigation at the Air Port itself revealed that the passenger was carrying dutiable goods, which were not declared to the Customs Officer. The Officers also asked the passenger to produce Indian Customs Declaration Form supposed to be filed by her, for which she replied negative. Finally, the Customs seized one yellow metal chain, two cut yellow metal bars and two bangles found concealed of her body, totally weighing 788.510 gms and valued at Rs.32,09,118/-. Subsequently, a show cause notice was confirmed and the entire gold was absolutely confiscated. The Commissioner (Appeals) after hearing the matter and the arguments and submissions upheld the order-in-original but reduced the penalty from Rs. 6,41,000/- to Rs. 3,41,000/-.
7. Therefore, from the facts of the case, it is clear that the golds were found on person of the appellant, when she arrived from abroad and only on interception by the Customs at the time of exiting through the Green Channel. A holistic reading of Baggage Rules 2016 and the relevant legal provisions under Customs Act would make it ample clear that under the Customs Act, specially Section 111(l) and 111(m), Section 77, 78 and 79 etc., all "goods" would be covered within definition of Baggage. Therefore, if any good whether, dutiable or prohibited, is in excess of permissible limit or beyond the scope of Baggage Rules, the same shall be liable for penal action in terms of Section 111(l) and 111(m), even though it will continue to be covered by Baggage Rules itself. Thus, there is a clear understanding that the confiscated goods were in the category of "baggage" and therefore under Section 129A proviso, this matter cannot be decided by the Tribunal.
8. Since the Learned Advocate has argued that in the facts of the case, the seized/confiscated goods namely gold in various forms, would not be in the nature of baggage, it is relevant to analyse this aspect. The term "baggage" has not been defined in the Baggage Rules 2016 and therefore definition under Customs Act has to be relied upon in terms of Rule 2(2) of said rules. Baggage has been defined under Section 2(3) under Customs Act as "baggage includes unaccounted baggage but does not include Motor Vehicle". Also under Section 2(22) baggage is treated as "goods".
(4) Appeal No. C/30006/2023
9. Therefore, when the baggage is "imported" as goods, such goods are liable to duty and other restrictions under Trade Policy. However, by virtue certain excuses and Rules, certain relaxations have been given for baggage (which would obvious include the accompanied as well as unaccompanied baggage as also goods on the passenger) from the applicable customs duty and restriction. The baggage Rules provides for duty free clearance for "bona fide baggage" upto certain counts and also excludes specifically from such benefit certain goods falling under annexure-I, II & III from the purview of the rules. A careful reading would, however, lead to conclusion that goods may not be eligible for certain relaxations etc but it does not change their nature from "baggage". Any goods brought by passenger from abroad is treated as import into India and leviable to applicable customs duty. The baggage may not be covered under Baggage Rules for the purpose of relaxation/duty etc but it does not alter the fact that goods in the accompanied or unaccompanied baggage or on person of passenger have been imported as "baggage" only by the passenger. This view is also supported by the observations of Tribunal in the case of Prakash Chandra Shantilal Vs Commissioner of Customs, Ahmadabad [2013 (290) ELT 125 (Tri-Ahmd)] Para 6 is quoted below:
"6. The contention of the ld. Counsel was that these are smuggled goods and therefore cannot be called as imported goods at all and only in the case of imported goods, imported as baggage, the Tribunal has no jurisdiction. According to Section 2(25) of Customs Act, 1962, 'imported goods' means any goods brought into India from a place outside India but does not include the goods which have been cleared for home consumption. According to the definition of the 'goods' as already mentioned above, the baggage forms part of the goods. When we read these two definitions together, what emerges is that when the goods are brought into India from a place outside India (in this case, baggage) till they are cleared for home consumption, they are considered as imported goods. In this case, before the clearance has taken place from the airport, the goods have been seized. The definition of the importer also provides that the person is considered to be importer till the goods are cleared for home consumption and when he holds himself to be an importer or the owner of the goods. In terms of above provisions, it becomes quite clear that in this case, whatever is brought by a passenger from abroad is considered as baggage and the passenger is required to make a declaration under Section 77 and till the goods are declared and cleared from Customs area (airport) after declaration, the goods remain imported goods and the person remains the importer. Going by this analogy also, the goods in this case can be considered as imported goods only and as already mentioned earlier, Section 129A provides that the Tribunal has no jurisdiction in respect of any goods imported or exported as baggage."
10. I have also gone through the judgments cited above. Hon'ble Madras High Court Judgment and specifically Shri Payangadi Moidu Mohammed Ali Vs Commissioner of Appeals, The Additional Commissioner of Customs (AIR) [2017 (2) TMI 84 Madras - HC], I find that the Tribunals have taken a consistent view that in the matter of Baggage, the Tribunal has no jurisdiction.
(5) Appeal No. C/30006/2023
11. The reliance by the Learned Advocate on the case of Ahamed Gani Natchiar Vs Commissioner of Customs, Chennai [2020 (9) TMI 267 CESTAT-Chennai] would also not help in as much as the Tribunal was deciding the matter on the direction of the Hon'ble High Court and it was also noted that the Revenue had not raised this issue of jurisdiction before the Hon'ble High Court. However, the Learned DR points out that on appeal by the Revenue against this order of the Tribunal entertaining the appeal filed by the appellant, the Hon'ble High Court disposed off the petition by making an observation that in terms of the proviso to Section 129A of the Customs, Act and appeal lies only before Revisionary Authority and therefore set aside the order of the Tribunal as bad in law. Therefore, this citation has still not support. Similarly, in the case of Asalam Khan Vs Commissioner of Central Excise and Customs, Central Goods & Service Tax, Jaipur [2021 (1) TMI 768 CESTAT-NEW DELHI] also the Tribunal did not give any detailed reason for not considering pure gold as baggage. Moreover, facts are clearly distinguishable hence it would also not help the appellant's argument that appeal is maintainable before this Tribunal.
12. From the facts of the case as discussed supra, I have no hesitation in holding that in this case the gold were imported by passenger in the nature of baggage, and therefore the appeal is not maintainable before the Tribunal.
13. Further, it is also observed that the appellant might have some bonafide belief that the appeals were maintainable before the Tribunal instead of Revisionary Authority, therefore, they may, if they so desire, prefer an appeal to Revisionary Authority against the order of the Commissioner (Appeals).
14. Therefore, the appeal is dismissed as not being maintainable.
(Dictated and pronounced in open court) (A.K. JYOTISHI) MEMBER (TECHNICAL) jaya