Delhi High Court: In a petition filed under Article 226/227 of the Constitution, challenging the orders dated 06-02-2024 and 23-09-2024, passed by the Joint Commissioner of Customs and the Commissioner of Customs (Appeals), respectively, the Division Bench of Prathiba M. Singh* and Dharmesh Sharma, JJ., stated that the Baggage Rules, 2016, (‘Baggage Rules’) were required to be re-looked by the Central Board of Indirect Taxes and Customs (‘CBIC’) and a policy decision was required to be taken by the Government of India to ensure that there was no harassment of genuine tourists and travellers, and also to ensure that illegal smuggling of gold was properly curbed. The values of gold that would be permissible under the Baggage Rules would also have to be re-looked by the CBIC, as the same appeared to be completely not in tune with the current market value of gold.
Background
In the present case, vide impugned order dated 06-02-2024, the adjudicating authority ordered confiscation of two gold kadas and one gold chain of the petitioner. The petitioner was also directed to pay a redemption fine of Rs. 75,000 and a personal penalty of Rs. 1,10,000 as per Customs Act, 1962. The petitioner filed an appealed and vide order dated 23-09-2024, the Commissioner of Customs (Appeals) dismissed the said appeal filed by the petitioner.
Analysis, Law, and Decision
The Court was informed by the Customs Officials that as per the Baggage Rules, the term “personal effects” would not include jewellery. The Court referred to Rule 2(vi) and Rule 5 of the Baggage Rules and stated that it could be seen that any jewellery of twenty grams with a value cap of Rs. 50,000 in case of a man and forty grams with a value cap of Rs. 1,00,000 in case of a woman, could only be cleared free of duty upon return to India, subject to the condition that the passenger concerned was residing abroad for more than one year.
The Court further stated that the Indian Customs Declaration Form issued by the CBIC showed that gold and gold jewellery was being treated as prohibited articles, if same was beyond the prescribed limits under Rule 5 of Baggage Rules.
The Court observed that in a number of writ petitions, even small quantities of jewellery was sometimes seized by the Customs Department if the passenger was walking through the green channel, which was for passengers not having any dutiable or prohibited goods.
The Court stated that while there was no doubt that any illegal smuggling of gold deserved to be curbed, at the same time, bona-fide and genuine tourists/travellers, including people from Indian Origin such as the OCI Cardholders, PIOs etc., could be travelling for social engagements in India with gold, which could be of a much higher value than the permissible limits. Such tourists and travellers ought not to be expected to file detailed declarations, as this could make the entire process of entering India and exiting from airports extremely unfriendly or onerous. In such cases, the Customs Officials would also be vested with too much arbitrary power and discretion, which might result in harassment of genuine passengers.
The Court stated that the Baggage Rules were required to be re-looked by the CBIC, and a policy decision was required to be taken by the Government of India to ensure that there was no harassment of genuine tourists and travellers, and to ensure that illegal smuggling of gold was properly curbed. The values of gold that would be permissible under the Baggage Rules would also have to be re-looked by the CBIC, as the same appeared to be completely not in tune with the current market value of gold.
The matter would next be listed on 27-03-2023.
[Qamar Jahan v. Union of India, W.P.(C) 198 of 2025, decided on 13-01-2025]
*Judgment authored by- Justice Prathiba M. Singh
Advocates who appeared in this case:
For the Petitioner: Ashish Panday, Advocate.
For the Respondents: Jagdish Chandra, CGSC-UOI with Shubham Kumar Mishra, Advocate, Shubham Tyagi, SSC-CBIC with Sunil Kumar, Deputy Commissioner, Sunil Kumar, ACS, Mratyunjay Singh Chauhan, ASC, Harpreet Singh, Senior Standing Counsel along with Suhani Mathur and Shivang Chawla, Advocates
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