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4. I heard Sri.Aswin Gopakumar, learned counsel appearing for the petitioner, Sri.John Varghese, learned Senior Counsel for Central Board of Excise and Customs, who took notice when the writ petition first came up for admission hearing before me on 5.3.2014. Sri.Aswin Gopakumar, learned counsel appearing for the petitioner contended that Notification No.117/92 dated 1.3.1992 which is said to have been violated, does not apply to the case on hand as it deals with the duty payable on gold imported into India by a passenger of Indian origin or holding an Indian Passport, that in the instant case, the gold chain (84 grams) was not brought in the petitioner's baggage but was worn by him and therefore, it was not liable to be declared in the baggage declaration contemplated in section 77 of the Act. The learned counsel for the petitioner submitted that the Baggage Rules, 1998 do not contain a stipulation that a foreigner travelling to India cannot wear gold ornaments on his person, that the Baggage Rules, 1998 have no application to gold ornaments worn by a person and has application only to gold or silver in any form whatsoever carried in a baggage and therefore, for that reason also, the impugned order is liable to be set aside. The learned counsel for the petitioner contended with reference to the definition of the term "Baggage" occurring in section 2(3) of the Act and the stipulations in sections 77, 80 and 81 thereof that the gold chain worn by the petitioner is by necessary implication excluded from the category of goods carried in a baggage and therefore, the Baggage Rules, 1998 can have no application.

17. The fact that the petitioner is a tourist of foreign origin is not in dispute. Rule 7 of the Baggage Rules, 1998 as amended 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.

18. Rule 7 of the Baggage Rules, 1998 reads as follows:-

"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."

Annexure IV;

(iii) of Indian origin coming by land routes as specified in Annexure IV.

In the instant case, the relevant entry will be, entry (b) in Appendix E.

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

4. Alcoholic liquor or wines in excess of two litres.
5. Gold or silver, in any form, other than ornaments.

21. The effect of the aforesaid stipulations in Appendix E and 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.