Rakesh Luthra And Ors. vs Commissioner Of Customs (Airport And General) New Delhi

None is present for the appellant. Learned Departmental Representative has impressed upon the request as was earlier made on 15.07.2021 by the

Department challenging the maintainability of the present petition. The decision of Hon’ble Madras High Court has also been placed on record.

The said objection was taken on record and time was given to the appellant to mark presence and to submit about the maintainability of this petition

along with any counter decision to the notice of this Bench, but appellant has opted to not to appear. Preliminary objection raised by the learned

Departmental Representative, therefore, is taken into consideration. It is submitted that as per Section 129(A), the Tribunal has no jurisdiction to

decide any appeal in respect of an order which relates to any goods imported or exported as baggage. He submitted that as per the New Baggage

Rules, 2016, even if the jewellery is worn on the person, it would not come within the definition of ‘personal effects’ and, therefore, would fall

under the category of baggage. That the appellant has to file a revision before the concerned authority and the appeal cannot be entertained by the

Tribunal. He has relied upon Final Order No. 41761/2018 of this Tribunal Chennai Bench in the case of Anees Fathima Bande Nawaz vs

Commissioner of Customs, Air-CC Airport, Chennai 1. As already observed that Appellant has opted to not to come present. Also the preliminary

objection raised is purely legal in nature. I proceed to decide the objection with reference to three appeals as follows:

The appellants when arrived at IGI Airport, New Delhi Terminal-3, from Bangkok on 08.06.2019 were found carrying one hand bag (in case of

Rakesh Luthra) and two hand bags (in case of Sonia Luthra and Sunita Luthra). These bags when scanned were found to contain gold bars. Show

cause notice No. 15498 dated 19.11.2019 was accordingly served on the appellants proposing not only the seizure of recovered gold but also recovery

of the requisite customs duty along with interest and the proportionate penalties. The proposal has been confirmed vide the order under challenge

giving rise to present appeal.

New Baggage Rules have come into existence post 2009-2014 vide Notification No. 30/2016 Cus-NT dated 01.03.2016. As per Rule 2(vi)

‘personal effects’ is defined to mean things required for satisfying daily necessities but does not include Jewellery. The gold recovered though

was not precisely jewellery but was definitely not the thing required for satisfying daily necessities.

The substantial use of this metal in making jewellery is also a fact which takes the metal out of the scope of definition of ‘personal effects’ in

Rule 2(iv) of New Baggage Rules. These observations are held sufficient to hold that the gold bars recovered from the bags of the appellants

intercepted at the airport (within the Customs area) are the goods imported as Baggage.

As per Section 129 (A) Customs Act, 1962, this Tribunal has no jurisdiction to decide any appeal in respect of an order which relates to any goods

exported or imported as Baggage. The appellants have brought the gold from outside India into their handbags without requisite declaration as required

under section 78 of the Customs Act. I accordingly hold the act of appellant as ‘Import as Baggage’. I draw my support from the decision in

the case of Shri Prakash Chandra Shantilal vs. CCE, Ahmadabad, (2013 (290) E.L.T. 125 (Tri. - Ahmd.)], wherein it was observed as under:

“5. The Foreign Trade Policy, 2009-2014 provides that the bona fide household goods and personal effects used to be imported as a

part of passenger baggage as per limit, terms & conditions thereof in baggage rules notified by Ministry of Finance. Further, the Foreign

Trade Policy also required a passenger to give a declaration.

……

In terms of Section 77 of Customs Act, 1962 which provides that the owner of any baggage for the purpose of clearances has to make a

declaration of his contents to the proper officer. The sum and substance of the provisions discussed above is that a passenger is required to

bring bona fide household articles which will be allowed as per the terms and conditions in the baggage rules.

…….

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7 .………

Hon’ble Supreme Court in Para 7 of the judgment in the case of M. Ambalal &        Co. also would support the conclusion

reached above, which is reproduced below.

 “7. Dutiable goods are goods whose import is permitted by the Act or any other law in force. Duty is the tax leviable on the goods

occasioned by their import into India or their export out of India. The dutiability of the goods is covered by Section 12 of the Act which is

the charging section. Under this Section, all goods imported into or exported from India are liable to Customs duty unless the Customs Act

itself or any other law for the time being in force provides otherwise. The rate of duty is fixed by the Customs Tariff Act, 1975. “Importâ€

and “Imported Goods†means that if goods are brought into India, meaning thereby into the territory of India from outside, there is

import of goods and the goods become imported goods and become chargeable to duty upto the moment they are cleared for home

consumption. The word ‘importer’ has been defined in the Act as importer in relation to any goods at any time between their

importation and the time when they are cleared for home consumption includes any owner or any person who holding himself out to be

importer. The word ‘smuggling’, in relation to goods, means any act or omission which will render such goods liable to confiscation

under Section 111 or Section 113 of the Act.â€​

8.        Further, the Hon’ble Supreme Court has remanded the matter to the Tribunal in the case of M. Ambalal & Co. and

the Tribunal has passed an order on remand by Hon’ble Supreme Court as reported in 2012 (281) E.L.T. 432 (Tri.-Mum.). In the case

of M. Ambalal & Co., the Revenue wanted to charge the duty on the goods considering them as baggage. The Tribunal has denied it on the

ground that the seizure had not taken place in the Customs area but outside the Customs area and the Revenue has no evidence to show that

the goods have been brought as baggage. â€​

The Hon’ble High Court of Judicature at Madras in the decision of Payangadi Moidu Mohammed Ali vs. Commissioner of Appeals, Chennai

[2017 (350) ELT 543 (Mad)] as relied upon by the Department and other Benches of this Tribunal Ahmadabad Chennai have also taken the same

view. I have no reason to have different opinion as is clear from above discussion also. Accordingly, it is held that since appeal relates to Baggage, the

same is not maintainable before the Tribunal. The appeal stands disposed of accordingly.

Registry is directed to return the appeal in original to the appellant. Appellant is at liberty to move the appropriate remedy before the Authority who

is competent to decide in respect of an order which relates to Baggage. However, orders for this appeal are to be retained in Tribunal in original and

copies thereof be given to the appellants along with their original appeal.