Madras High Court
The Principal Commissioner Or Customs ... vs Ahamed Gani Natchiar on 1 September, 2022
Author: R. Mahadevan
Bench: R. Mahadevan, Mohammed Shaffiq
C.M.A.No.1716 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 01.09.2022
CORAM
THE HONOURABLE MR. JUSTICE R. MAHADEVAN
AND
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
C.M.A. No.1716 of 2020
and W.P. No.4811 of 2021
Cause title in C.M.A. No.1716 of 2020:
The Principal Commissioner or Customs (Air Port),
Chennai I Commissionerate,
Air Cargo Complex, Meenambakkam, Chennai-27. ... Appellant
Vs.
Ahamed Gani Natchiar,
97A, Aequl Street, Penang,
Malaysia 10200. ... Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 130 of Customs Act,
1962 against the final order No.40774 of 2020 dated 08.06.2020 on the file of the
Customs Excise and Service Tax Appellate Tribunal, South Zonal Bench,
Chennai and restore the order in Original No.245/16-17-AIRPORT dated
30.01.2017.
Cause title in W.P. No.4811 of 2021:
Ahamed Gani Natchiar ... Petitioner
Vs.
1.Principal Commissioner of Customs
Customs Commissionerate-I (Airport)
New Customs House, GST Road,
Meenambakkam, Chennai-600 027.
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C.M.A.No.1716 of 2020
2.Assistant Commissioner of Customs (AIU),
Customs Commissionerate-I (Airport),
New Customs House, GST Road,
Meenambakkam, Chennai-600 027.
3.Assistant Commissioner of Customs (Disposal),
Customs Commissionerate-I (Airport),
New Customs House, GST Road, Meenambakkam, Chennai-600 027.
4.The Chief Manager,
State Bank of India, Chennai Main Branch,
No.231, NSC Bose Road, Chennai-600 001. ... Respondents
PRAYER: Writ petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorari calling for the records culminating in the
disposal order dated 11.02.2020 in F.No.S.Misc01/2018-AIU-Vol-II passed by
the 2nd Respondent and quash the order of disposal specifically in serial No.9 in
O.S.No.612/2016-AIU weighing 626 grams of gold for the value of Rs.19,71,900
and the consequential action by the 4th Respondent or any other or orders as this
Court may deem fit and proper in the circumstances of the case and thereby
render justice.
For Appellant/
Petitioner : Mr.V.Sundareswaran
Senior Panel Counsel
For Respondents : Ms.Shabnam Banu
COMMON JUDGMENT
(Judgment of the Court was made by MOHAMMED SHAFFIQ, J.) The present appeal under Section 130 of the Customs Act, 1962 has been filed challenging the order of the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as "CESTAT") on the premise that the order of the Tribunal is without jurisdiction in view of the proviso to Section 129A (1) of the Customs Act, 1962, which provides that the Tribunal shall have https://www.mhc.tn.gov.in/judis 2/23 C.M.A.No.1716 of 2020 no jurisdiction to decide any appeal in respect of any goods imported or exported as "Baggage". Apart from the issue of jurisdiction of the Tribunal, the order is also challenged questioning the correctness of the order of the Tribunal interfering with the absolute confiscation made by the adjudicating authority and directing re-export of the gold involved.
2. Brief facts:
a. Admittedly, the Respondent is a citizen of Malaysia. b. The Respondent travelled from Kuala Lampur and landed in India on 4th September, 2016.
c. The Respondent was intercepted by a lady Customs Officer at the Chennai Airport on a reasonable suspicion that she may be carrying gold, as the Respondent was walking out through the exit after having passed through the Customs Green Channel along with her Baggage. On being questioned as to whether she was in possession of any dutiable / prohibited goods, she replied in the negative.
d. The Customs authorities not being satisfied with the reply, proceeded to examine the Respondent, the Baggage was found not to contain anything incriminating. However, on a physical search of the person of the https://www.mhc.tn.gov.in/judis 3/23 C.M.A.No.1716 of 2020 Respondent, it was found that she was wearing a gold chain and bangles beneath her closed neck and full sleeves dress.
e. The chain and the bangles were recovered from the Respondent, which was certified by the Government of India Gold Appraiser to be gold of 24 Carat purity weighing in all 626 grams and was valued at Rs.19.71 lakhs.
f. On being questioned, the Respondent initially stated that the gold did not belong to her but was given by her son in Malaysia and was asked to smuggle the gold into India without payment of duty and that she was promised to be monetarily rewarded and she accepted the same as she was in need of money.
g. The gold was seized since the Respondent had not declared the same and in the view of the Customs authority, she was ineligible to import gold.
h. Vide letter dated 05.09.2016 she had waived issuance of show-cause notice.
i. On 13.11.2016, the Respondent made a request to the Customs authorities to return the gold jewellery stating that she had come to Chennai only to attend a family function and that it was customary to wear gold for weddings. It was further clarified by her that she intended to be in Chennai only for 2 weeks and produced her return ticket. She had also produced bills/ invoices for the above chain and bangles from "Haji Hameed Sheik Son". It was submitted that the jewellery owned by her was her personal jewellery which was gifted to https://www.mhc.tn.gov.in/judis 4/23 C.M.A.No.1716 of 2020 her by her son out of love and affection, despite having produced the relevant invoices the Customs officials took custody of the jewellery and she was made to sign a statement and Mahazar which was stated to be neither translated nor explained.
3. The Principal Commissioner of Customs ordered absolute confiscation of gold chain and bangles (10 numbers of crude gold bangles) weighing 626 grams under Section 111(d) and (l) of the Customs Act, 1962 read with Sec. 3(3) of the Foreign Trade (Development & Regulation) Act, 1992, while also imposing penalty under Section 112(a) and 114 AA of the Customs Act, 1962 of Rs.1,95,000 and Rs.5000 respectively, the above order of confiscation and penalty dated 11.05.2017, was imposed on the premise :
i. That the Respondent had smuggled gold by concealing and not declaring thereby attracting Section 2(33), 77, 79, 111(d), (l),112 and 114 AA of the Customs Act, 1962 read with Para 2.08 and 2.26 of the Foreign Trade Policy and Hand book of Procedure 2015-2020.
ii. The passenger/ appellant had originally stated that she had attempted to smuggle the gold on instruction from her son for sale in India. However, she had later retracted/ clarified stating that the recovered jewellery is her personal jewellery. The Government approved gold appraiser has certified the gold to be of 24 Carat purity which proves that she has imported the gold with an intention https://www.mhc.tn.gov.in/judis 5/23 C.M.A.No.1716 of 2020 to sell them for monetary benefits. Hence, the claim of ownership of the gold by the respondent is only an afterthought and that the respondent had acted as a mere carrier and had brought the gold for monetary benefit. The gold was recovered by the officers only during the personal search and the same was seized under a Mahazar for non-fulfilment of the import conditions and mis- declaration.
iii. That the passenger being a foreign national does not satisfy any of the conditions of Notn. No.12/2012-Cus dated 17.03.2012 as amended vide Notn. No.26/2012-Cus dated 18.04.2012 and thus not eligible to import gold.
4. Aggrieved by the above, the Respondents preferred an appeal, the Appellate Authority proceeded to confirm the order primarily on the premise that the gold recovered / seized/ confiscated from the Respondent of 24 carat purity which according to the Appellate Authority was itself indicative that the gold was merely given the shape of chain/ bangles to pass off as jewellery while the intent was to smuggle gold into India and thus the same was liable for confiscation more so, when the Respondent do not fall within the category of passengers eligible to bring gold in their Baggage and thereby confirmed the order of confiscation made by the Commissioner.
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5. Aggrieved by the order of the Appellate Authority, the petitioners preferred an appeal before the CESTAT. The Respondent being a senior citizen a CRP PD No.248 of 2019 was filed seeking a direction to set a time frame to fix the hearing of the appeal by the Tribunal. This Court was pleased to direct the petitioners to make a mention before the Respondent Tribunal for early disposal and the Tribunal was directed to consider and dispose of the appeal on merits and in accordance with law within a period of 1 month from the date of mentioning.
6. Before the Tribunal, a preliminary objection was raised as to the jurisdiction of the Tribunal to entertain/ hear the appeal relating to Baggage in view of the restriction/ limitation imposed under the proviso to Section 129 A(1) of the Customs Act, 1962. It was submitted that the remedy of the Respondent was only with the Government of India, as a Revisional Authority. The above objection was however overturned by the Tribunal on the premise that in the present case, the allegation was failure on the part of the Respondent to comply with the conditions in relation to import of gold jewellery which led to its exclusion from Baggage and proceedings were made under Section 124 of the Customs Act, 1962 which falls within the jurisdiction of the Tribunal. Moreover, the Revenue having failed to express any objection before the High Court , it was stated by the Tribunal that it was not open for the Revenue to raise the question https://www.mhc.tn.gov.in/judis 7/23 C.M.A.No.1716 of 2020 of jurisdiction before the Tribunal. The Tribunal proceeded to examine the facts and set aside the order of the Appellate authority on the following grounds:
a. That the reasons and the records leading to confiscation and imposition of penalty was found to be flimsy and bereft of reasons as the entire proceeding was based only on the Mahazar and thus the conclusion of concealment was found to have been not established.
b. The entire proceeding is premised on the fact that the imported gold was of 24 carat purity which is practically not possible.
c. Importantly, it was found that there was nothing on record to establish that the import of gold jewellery is prohibited either under the Customs Act, 1962 or under any other law for the time being in force. Under Section 33 of the Foreign Trade, Development and Regulation Act, 1992, it is only such goods, to which an order under Section 32 of the same Act has been issued by the Central Government, that can be deemed to be prohibited goods under Section 11 of Customs Act, 1962. No such order was on record. Therefore, the Tribunal found that it was unable to concur with the first appellate authority that the jewellery imported by the appellant is prohibited. Consequently, the confiscation under Section 111(d) of Customs Act, 1962 fails.
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7. Against the above background, the following questions arise for consideration:
a. Whether the Tribunal was right in rejecting the plea of the appellant herein of lack of authority/ jurisdiction of the Tribunal, in view of the fact that the issue according to the appellant relates to goods imported as "Baggage" and thus falls within the exclusions carved out in the proviso to Section 129A(1) of the Customs Act, 1962 which reads as under:
Section 129A(1) in the Customs Act, 1962 "(1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order—
(a) a decision or order passed by the 301 [Commissioner of Customs] as an adjudicating authority;
(b) an order passed by the 302 [Commissioner (Appeals)] under section 128A;
(c) an order passed by the Board or the Appellate 301 [Commissioner of Customs] under section 128, as it stood immediately before the appointed day;
(d) an order passed by the Board or the 301 [Commissioner of Customs], either before or after the appointed day, under section 130, as it stood immediately before that day: 303 [Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such or relates to,rde—
(a) any goods imported or exported as Baggage;"
(emphasis supplied) https://www.mhc.tn.gov.in/judis 9/23 C.M.A.No.1716 of 2020 A reading of the above provision would show that the Tribunal shall not have jurisdiction to decide any appeal in respect of an order passed by the Commissioner (Appeals) under Section 128 A of the Customs Act, 1962 relating to any goods imported or exported as "Baggage".
b. Whether jewellery worn on the person would constitute "Baggage", if the answer to the above question is in the affirmative it then seems doubtful if the Tribunal was right in assuming jurisdiction. In this regard, it may be relevant to refer to the following provisions:
i) Rule 3 of the Baggage Rules, 2016:
"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 than Nepal, Bhutan or Myanmar, shall be allowed clearance free of duty articles in his bona fide Baggage, that is to say, -
(a) used personal effects and travel souvenirs; and
(b) articles other than those mentioned in Annexure-I, upto the value of fifty thousand rupees if these are carried on the person or in the accompanied Baggage of the passenger:
Provided that a tourist of foreign origin, not being an infant, shall be allowed clearance free of duty articles in his bona fide Baggage, that is to say, (a) used personal effects and travel souvenirs; and https://www.mhc.tn.gov.in/judis 10/23 C.M.A.No.1716 of 2020
(b) articles other than those mentioned in Annexure- I, upto the value of fifteen thousand rupees if these are carried on the person or in the accompanied Baggage of the passenger:
Provided further that where the passenger is an infant, only used personal effects shall be allowed duty free. Explanation.- The free allowance of a passenger under this rule shall not be allowed to pool with the free allowance of any other passenger. "
ii) Definition of Baggage under the Customs Act, 1962:
“(2)(3) - "Baggage" includes unaccompanied Baggage but does not include motor vehicles; "
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.
8.1. It may be relevant to note that the Baggage Rules, 2016 was introduced vide Notification No.30 of 2016-Cus(N.T.) dated 01.03.2016, prior to the above amendment it was governed by the Baggage Rules, 1998. It may be relevant to set out Rule 3 as it prevailed during the relevant period and prior thereto, which is tabulated hereunder:
https://www.mhc.tn.gov.in/judis 11/23 C.M.A.No.1716 of 2020 Section 3 of Baggage Rule, 1998 Section 3 of Baggage Rule, 2016
3.Passengers returning from countries other 3. Passenger arriving from countries other than Nepal,Bhutan, Myanmar or China.- An than Nepal, Bhutan or Myanmar.-An Indian Indian resident or a foreigner residing in India resident or a foreigner residing in India or a , returning from any country other than Nepal, tourist of Indian origin, not being an infant Bhutan, Myanmar or China, shall be allowed arriving from any country other than Nepal, clearance free of duty articles in his bonafide Bhutan or Myanmar, shall be allowed Baggage to the extent mentioned in column clearance free of duty articles in his bona fide (2) of Appendix A. Baggage, that is to say, - (a) used personal effects and travel souvenirs; and (b) articles other than those mentioned in Annexure-I, upto the value of fifty thousand rupees if these are carried on the person or in the accompanied Baggage of the passenger:
Provided that a tourist of foreign origin, not being an infant, shall be allowed clearance free of duty articles in his bona fide Baggage, that is to say, (a) used personal effects and travel souvenirs; and (b) articles other than those mentioned in Annexure- I, upto the value of fifteen thousand rupees if these are carried on the person or in the accompanied Baggage of the passenger:
Provided further that where the passenger is an infant, only used personal effects shall be allowed duty free. Explanation.- The free allowance of a passenger under this rule shall not be allowed to pool with the free allowance of any other passenger.
8.2. If one contrasts Rule 3 of the above Rules governing the different periods, it would suggest that ornaments carried on the person though treated as "Baggage" under Rule 3 of the 2016 Rules was not treated to be a Baggage under the 1998 Rules.
A reading of Rule 3 of the 2016 Baggage Rules would indicate that the said Rule covers the following categories of passengers viz., https://www.mhc.tn.gov.in/judis a. An Indian Resident. 12/23 C.M.A.No.1716 of 2020
b. A Foreigner residing in India.
c. Tourist of Indian origin.
d. And not being an infant arriving from any country other than Nepal, Bhutan or Myanmar.
Admittedly, the Respondent is a Malaysian national and therefore would not fall under any category of the passengers governed under the main part of Rule 3 of the Baggage Rules, 2016. However, the proviso to Rule 3 appears to provide for an independent/additional category of passengers viz., tourist of foreign origin not being an infant. It appears that the respondent who is a Malaysian national may be covered by the proviso to Rule 3 of the Baggage Rules 2016. Thus, the respondent is one of the categories of passengers who are governed by the Baggage Rules.
9. Having found that the Baggage Rules would cover the respondents in terms of the categories of passengers, question may still arise as to whether jewellery worn on the person of a passenger would constitute Baggage. It may be necessary for the appellant to show that not only the appellants are governed by the Baggage rules but the jewellery worn on the person would constitute “Baggage” to sustain its argument of lack of jurisdiction of the Tribunal to deal with the present issue.
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10. The answer to the above question assumes relevance, for if the answer is in the affirmative the order of the Tribunal would be null and void for want of jurisdiction. To the contrary, if it does not constitute "Baggage", the argument of the learned counsel for the appellant on jurisdiction may have to be rejected.
11. It is submitted by the learned Counsel for the respondent that “Baggage” connotes something distinct and different from the passenger. In this regard, it may be relevant to refer to the judgment of the Kerala High Court in the case of Vigneswaran Sethuraman vs. Union of India in W.P.(C).No.6281 of 2014, wherein while dealing with the question as to whether jewellery worn on the person would constitute "Baggage", it was found that gold ornaments worn by a passenger viz., Sri Lankan citizen would not constitute "Baggage". It was held that "Baggage" connotes something distinct and different from the passenger who had brought the Baggage. Thereafter, the High Court proceeded to reject the argument in support of the order of confiscation that a foreigner cannot import a single gram of gold free of duty after recording that despite repeated query there was no provision which was brought to the notice of the Court which would show any such prohibition, the relevant portion of the order is extracted below:
https://www.mhc.tn.gov.in/judis 14/23 C.M.A.No.1716 of 2020 “Facts:
10.......the second respondent has confiscated the gold chain worn by the petitioner on the short ground that a foreigner who is a tourist to India cannot import even a single gram of gold free of duty or on payment of duty. The second respondent has also found that the petitioner attempted to smuggle a 24 carat gold chain into India. He has on these findings ordered confiscation of the gold chain invoking section 111(d),
(i), (l) & (m) of the Act and also levied penalty under section 112(a) and
(b) thereof.
.......
14. .....The question whether the Baggage Rules, 1998 have any application to gold chain worn by the petitioner also arises for consideration.
15. Section 77 of the Act stipulates that the owner of any Baggage shall for the purpose of clearing it make a declaration of its contents to the proper officer. The term "Baggage" is defined in section 2(3) of the Act to include unaccompanied Baggage. Motor vehicles are excluded from the purview of the said definition. The declaration under section 77 is to be made by the owner of the Baggage. The term Baggage ordinarily connotes suitcases or bags or containers in which a traveller carries his/her goods or belongings. Section 2(22) of the Act defines the term goods to include Baggage. Having regard to the stipulations in section 77 and the definition of the term "Baggage" occurring in section 2(3) of the Act, the body of a passenger cannot be said to be Baggage. In the instant case, the gold chain was worn by the petitioner and was not carried in his Baggage. It was therefore not necessary for the petitioner to declare the gold chain worn by him. Section 80 of the Act clarifies the position. Section 80 stipulates that the Baggage of a passenger, which contains any article which is dutiable or the import of which is prohibited, https://www.mhc.tn.gov.in/judis 15/23 C.M.A.No.1716 of 2020 may be detained at the request of the passenger for the purpose of being returned to him on his leaving India. The term Baggage thus connotes something which is distinct and different from the passenger who has brought the Baggage. Section 81 of the Act empowers the Central Board to frame regulations regarding the declaration of the contents of any Baggage, its custody, examination, assessment to duty and clearance of Baggage and transit of Baggage from one customs station to another or to a place outside India. Going by the stipulations in sections 77, 80 and 81 of the Act, I am persuaded to take the view that the provisions therein can have no application to the instant case where the petitioner, a tourist coming from Sri Lanka had on his person a gold chain which he was wearing and was not kept concealed in his body. Such being the situation, clauses (l) and (m) of section 111 of the Act can have no application.
16....In the absence of any prohibition imposed by the Act or any other law to the effect that a foreign tourist arriving in India cannot wear gold ornaments on his person or wear gold ornaments of 24 carat purity, clause (d) of section 111 could not have been invoked to confiscate the gold chain worn by the petitioner. The gold chain was not concealed in any package and therefore it could not have been confiscated invoking clause (i) of section 111. Even if it was dutiable, as it was not concealed in any manner in any package either before or after it was unloaded, it could not have been confiscated invoking clause (i) of section 111 of the Act. At best, only the duty payable could have been levied. There is also yet another reason why the impugned action cannot be sustained. Even assuming for the sake of arguments that a foreign tourist arriving in India cannot wear gold ornaments on his/her person in view of an express provision of law in that regard (such a statutory provision was not brought to my notice and it is not referred to in Ext. P3 order), the respondents should have informed the petitioner that he cannot wear it for the reason https://www.mhc.tn.gov.in/judis 16/23 C.M.A.No.1716 of 2020 that the import of it is prohibited and given him the option of having the goods detained for the purpose of being returned to him on his leaving India as contemplated in section 80 of the Act. The respondents have not stated in Ext. P3 that such an option was extended to him and therefore for that reason also, the impugned order is liable to be set aside.
........
20. I shall now consider whether the Baggage Rules, 1998 prohibit a tourist of foreign origin from bringing even a single gram of gold free of duty or on payment of duty to India as stated by the second respondent in Ext. P3. Rule 7 of the Baggage Rules, 1998 stipulates that a tourist arriving in India shall be allowed clearance free of duty, articles in his bona fide Baggage to the extent mentioned in column (2) of Appendix E. The petitioner is a tourist of foreign origin. This fact is not in dispute. Going by entry (b) in Appendix E, tourists of foreign origin, other than those of Pakistani origin coming from Pakistan, coming to India by air can be allowed clearance free of duty (i) his or her used personal effects and (ii) articles other than those mentioned in Annexure I, up to a value of Rs. 8000 for personal use of the tourist or as gifts and travel souvenirs if these are carried on the person or in the accompanied Baggage of the passenger. Annexure I referred to in Appendix E is extracted below for easy reference:-
1. Firearms.
2. Cartridges of fire arms exceeding 50.
3. Cigarettes exceeding 200 or cigars exceeding 50 or tobacco exceeding 250 gms.
4. Alcoholic liquor or wines in excess of two litres.
5. Gold or silver, in any form, other than ornaments.
..........
https://www.mhc.tn.gov.in/judis 21. The effect of the aforesaid stipulations in Appendix E and 17/23 C.M.A.No.1716 of 2020 Annexure I of the Baggage Rules, 1998 is that a tourist of foreign origin coming to India by air is not entitled to duty free clearance of firearms, cartridges of fire arms exceeding 50 numbers, cigarettes exceeding 200 or cigars exceeding 50 or tobacco exceeding 250 gms., alcoholic liquor or wines in excess of two litres and gold or silver in any form other than ornaments. It is evident from the Baggage Rules, 1998 that the restriction or prohibition is on the duty free clearance of gold or silver in any form other than as ornaments and not on the import as such. It is not stipulated in the Baggage Rules, 1998 that a foreign tourist who is coming to India by air cannot wear a gold chain or even his/her wedding ring. In the absence of an express provision in the Baggage Rules, 1998 prohibiting a foreign tourist entering India from wearing a gold chain or other gold jewellery, I am of the considered opinion that the impugned order was passed without any legal foundation.
.........
26. The Customs Act, 1962 or the Baggage Rules, 1998 do not stipulate that a foreign tourist entering India cannot wear gold ornaments on his person. The Customs Act, 1962 and the Baggage Rules, 1998 do not provide sufficient warning to foreign tourists entering India that wearing a gold chain is prohibited. The Act and the Rules do not even remotely indicate that a foreign tourist entering India cannot wear a gold chain on his person. In other words, foreign tourists entering India are in a boundless sea of uncertainty as to whether it is prohibited or not. As the Customs Act, 1962 and the rules framed thereunder contemplate confiscation and levy of penalty as also prosecution, the State has a duty to specify with a degree of certainty as to what is prohibited and what is not, without leaving it to the foreign tourist to guess what is prohibited and what is not.” https://www.mhc.tn.gov.in/judis (emphasis supplied) 18/23 C.M.A.No.1716 of 2020
12. Though the above judgment of the Kerala High Court does indicate that “Baggage” would not include old ornaments worn by the passenger. However, the above judgment was rendered in the context of Baggage Rules, 1998. The tabulated column which we have set out earlier would show that Baggage under the 2016 Rules includes jewellery worn on the person, however, the 1998 Baggage Rules was not expansive enough to include the same. We had contrasted Rule 3 of the Baggage Rules, 2016, as it existed during the different periods to show two aspects viz., a. Baggage normally may not include jewellery worn on a person. b. Legislature/ Rule making authority whenever it intended to include jewellery worn on the person to constitute "Baggage", it has expressly provided for the same as in Baggage Rules, 2016. The expansive definition of “Baggage” under 2016 Rules, includes jewellery worn on the person. The above clause is in the nature of a fiction. It is trite law that once a fiction is created by the legislature it is important to give effect to the fiction and carry it to its logical end without letting the mind get bogged down by the consequences. In this regard it may be useful to note the following propositions which are well-settled rather axiomatic to appreciate the scope and purport behind creation of fiction by the legislature or its delegate:
https://www.mhc.tn.gov.in/judis 19/23 C.M.A.No.1716 of 2020 “In interpreting a provision creating a legal fiction, the Court is to ascertain for what purpose the fiction is created1, and after ascertaining this, the Court is to assume all those facts and consequences which are identical or inevitable corollaries to the giving effect to the fiction2.
“After ascertaining the purpose, “full effect must be given to the statutory fiction and it should be carried to its logical conclusion3 and to that end “it would be proper and even necessary to assume all those facts on which alone the fiction can operate”4. In an oft-quoted passage, LORD ASQUITH stated: “ If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.... The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs5.” It thus seems that the appellants may be right in its submission that the issue relates to Baggage falls within the exclusion carved out in terms of the proviso to Section 129 A (1) of the Customs Act, 1962 and thus the order of the Tribunal is set aside as bad in law. However, liberty is granted to the respondents to avail statutory remedy by way of a revision before the appropriate authority if so advised within a period of 8 weeks from the date of receipt of a copy of this order. If such revision is filed by the respondents within the time line set out 1 State (NCT of Delhi) Vs. Sanjay,(2014) 9 SCC, 2 J.K.Cotton Spinning & Weaving Mills Ltd. Vs. Union of India, AIR 1998 SC 191 3C.I.T. (Central) Calcutta Vs. Moon Mills Ltd., AIR 1966 SC 870 4State of West Bengal Vs. Sadam K.Bormal, AIR 2004 SC 3666, 5Nandkishore https://www.mhc.tn.gov.in/judis Ganesh Joshi Vs. Commr. Municipal Corporation Kalyan, AIR 2005 SC 34. 20/23 C.M.A.No.1716 of 2020
above the Revisional Authoirty shall examine the matter and pass order on merits.
13. As we have decided that the Tribunal may not have jurisdiction to entertain the appeal in respect of an order relating to import of baggage, as a consequence W.P.No.4811 of 2021 praying for disposal of her jewellery which was premised on the order of the Tribunal which we have set aside appears to have become infructuous. However liberty is granted in the event of the petitioner succeeding in the challenge to the order of the appellate authority before the appropriate forum to avail any remedy that may be available to enforce such order in the manner known to law.
14. The Civil Miscellaneous Appeal and the writ petition stand disposed of with the above directions. No Costs. Consequently, connected miscellaneous petitions are closed.
[R.M.D., J.] [M.S.Q., J.]
01.09.2022
Index : Yes/No
Speaking/Non-Speaking Order
mka/nst
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C.M.A.No.1716 of 2020
To:
1. The Customs Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai.
2.Principal Commissioner of Customs Customs Commissionerate-I (Airport) New Customs House, GST Road, Meenambakkam, Chennai-600 027.
3.Assistant Commissioner of Customs (AIU), Customs Commissionerate-I (Airport), New Customs House, GST Road, Meenambakkam, Chennai-600 027.
4.Assistant Commissioner of Customs (Disposal), Customs Commissionerate-I (Airport), New Customs House, GST Road, Meenambakkam, Chennai-600 027.
5.The Chief Manager, State Bank of India, Chennai Main Branch, No.231, NSC Bose Road, Chennai-600 001.
https://www.mhc.tn.gov.in/judis 22/23 C.M.A.No.1716 of 2020 R. MAHADEVAN, J.
and MOHAMMED SHAFFIQ, J.
mka/nst C.M.A. No.1716 of 2020 and W.P. No.4811 of 2021 01.09.2022 https://www.mhc.tn.gov.in/judis 23/23