Mr. Parminder Singh Sandhu and Mr. Abhishek Sharma, Advocates v. COMMISSIONER OF CUSTOMS

Judgment

2. This hearing has been done through hybrid mode. The present writ petition has been filed by the Petitioner-Sonia Jain under Article 226 of the Constitution of India inter alia seeking a direction to the Respondent authority to release the goods of the Petitioner i.e., one gold kada weighing about 46 grams and one gold chain weighing about 30

grams. The same are stated to be detained by the Respondent authority vide Detention memo bearing GC No. 3114 dated 4th July, 2024.

3. A brief background of the present case is that the Petitioner was intercepted by the Respondent authority on her arrival from Bangkok on 4th July, 2024. Further, one gold kada weighing 46 grams and one gold chain weighing 30 grams were detained by the Customs authority vide a detention Signature Not Verified Signed By:NAMITA DHYANI Signing Date:28.05.2025 18:23:11 W.P.(C) 7296/2025 memo bearing GC No. 3114 dated 4th July, 2024.

4. It is the case of the Petitioner that no Show Cause Notice has been issued till date as also that the gold items of the Petitioner are her old personal used gold jewellery and the same ought to be returned.

5. A photograph displaying the gold jewellery detained by the Respondent authority, represented as personal jewellery of the Petitioner is filed with the Petition.

6. Heard the ld. Counsels for the parties. The Court has also perused the documents placed on record. In the opinion of the Court, having considered the facts of the case and the documents placed on record, the detained jewellery clearly appear to be used personal jewellery of the Petitioner.

7. In terms of Rule 2(vi) read with Rule 3 of the Rules, the Petitioner would be permitted clearance of articles, free of duty in their bona fide baggage, including used personal effects. The relevant provisions of the Rules are extracted hereunder: “2(vi) “Personal effects” means things required for satisfying daily necessities but does not include jewellery. * * * * 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, up to the value of fifty thousand rupees if these are carried on the person or in the accompanied baggage of the passenger: Signature Not Verified Signed By:NAMITA DHYANI Signing Date:28.05.2025 18:23:11 W.P.(C) 7296/2025 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, up to 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. * * * *

5. Jewellery.- A passenger residing abroad for more than one year, or return to India, shall be allowed clearance free of duty in his bona fide baggage of jewellery upto a weight, of thousands rupees if brought by a gentleman passenger, or forty grams with a value cap of one lakh rupees if brought by a lady passenger. twenty grams with a value cap of * * * * ANNEXURE–I (See Rules 3, 4 and 6)

1. Fire arms. 2. Cartridges of fire arms exceeding 50. 3. Cigarettes exceeding 100 sticks or cigars exceeding 25 or tobacco exceeding 125 gms. 4. Alcoholic liquor or wines in excess of two litres.

5. Gold or silver in any form other than ornaments. 6. Flat Panel (Liquid Crystal Display/Light-Emitting Diode/Plasma) television.”

8. The issue whether gold jewellery worn by a passenger would fall Signature Not Verified Signed By:NAMITA DHYANI Signing Date:28.05.2025 18:23:11 W.P.(C) 7296/2025 within the ambit of personal effects under the Rules, has now been settled by various decisions of the Supreme Court as also this Court. The Supreme Court in the Directorate of Revenue Intelligence and Ors. v. Pushpa Lekhumal Tolani, (2017) 16 SCC 93, while considering the relevant provisions of the Customs Act, 1962 (hereinafter, the ‘Act’) read with the Baggage Rules, 1998, that were in force during the relevant period, held that it is not permissible to completely exclude jewellery from the ambit of ‘personal effects’. The relevant paragraphs of the said order read as under: the passenger. Further, as per “13. Insofar as the question of violation of the provisions of the Act is concerned, we are of the opinion that the respondent herein did not violate the provisions of Section 77 of the Act since the necessary declaration was made by the respondent while passing through the green channel. Such declarations are deemed to be implicit and devised with a view to facilitate expeditious and smooth clearance of International Convention on the Simplification and Harmonisation of Customs Procedures (Kyoto 18-5- 1973), a passenger going through the green channel is itself a declaration that he has no dutiable or prohibited articles. Further, a harmonious reading of Rule 7 of the Baggage Rules, 1998 read with Appendix E (2) (quoted above), the respondent was not carrying any dutiable goods because the goods were the bona fide jewellery of the respondent for her personal use and was intended to be taken out of India. Also, with regard to the proximity of purchase of the jewellery was not purchased a few days before the departure of respondent from UK, a large number of items had been in use for a long period. It did not make any difference whether the jewellery is new or used. There is also no relevance of the argument that since all the jewellery is to be taken out of India, it was, therefore, deliberately brought to India for taking it to Singapore. Foreign jewellery, all Signature Not Verified Signed By:NAMITA DHYANI Signing Date:28.05.2025 18:23:11 W.P.(C) 7296/2025 tourists are allowed to bring into India jewellery even of substantial value provided it is meant to be taken out of India with them and it is a prerequisite at the time of making endorsements on the passport. Therefore, bringing jewellery into India for taking it out with the passenger is permissible and is not liable to any import duty. * * * *

15. […] Also, from the present facts and circumstances of the case, it cannot be inferred that the jewellery was meant for import into India on the basis of return ticket which was found to be in the possession of respondent. Moreover, we cannot ignore the contention of the respondent that her parents at the relevant time were in Indonesia and she had plans of proceeding to Indonesia. Some of the jewellery items purchased by the respondent were for her personal use and some were intended to be left with her parents in Indonesia. The High Court has rightly held that when she brought jewellery of a huge amount respondent did not seem to have the intention to smuggle the jewellery into India and to sell it off. Even on the examination of the jewellery for costing purposes, it has come out to be of Rs 25 lakhs and not Rs 1.27 crores as per DRI. The High Court was right in holding that it is not the intention of the Board to verify the newness of every product which a traveller brings with him as his personal effect. It is quite reasonable that a traveller may make purchases of his personal effects before embarking on a tour to India. It could be of any personal effect newness is of no consequence. The expression “new goods” in their original packing has to be understood in a pragmatic way.” including jewellery. Therefore, into the country,

9. In Saba Simran v. Union of India & Ors., 2024:DHC:9155-DB, the Signature Not Verified Signed By:NAMITA DHYANI Signing Date:28.05.2025 18:23:11 W.P.(C) 7296/2025 Division Bench of this Court was seized with the issue of deciding the validity of the seizure of gold jewellery by the Customs Department from an Indian tourist. The relevant paragraphs of the said judgement are as under: “15. The expression ‘jewellery’ as it appears in Rule 2(vi) would thus have to be construed as inclusive of articles newly acquired as opposed to used personal articles of jewellery which may have been borne on the person while exiting the country or carried in its baggage. Thus, personal jewellery which is not found to have been acquired on an overseas trip and was always a used personal effect of the passenger would not be subject to the monetary prescriptions incorporated in Rules 3 and 4 of the 2016 Rules.

16. This clearly appeals to reason bearing in mind the understanding of the respondents themselves and which was explained and highlighted in the clarificatory Circular referred to above. That Circular had come to be issued at a time when the Appendices to the 1998 Rules had employed the phrase “used personal effects, excluding jewellery”. The clarification is thus liable to be appreciated in the aforesaid light and the statutory position as enunciated by the respondents themselves requiring the customs officers to bear a distinction between “personal jewellery” and the word “jewellery” when used on its own and as it appears in the Appendices. This position, in our considered opinion, would continue to endure and remain unimpacted by the provisions contained in the 2016 Rules.”

10. The above mentioned decision of the Division Bench of this Court was challenged before the Supreme Court in SLP(C) No. 011281 / 2025 titled Union of India & Ors. V. Saba Simran. The Supreme Court, while dismissing the said challenge, held as under: Signature Not Verified Signed By:NAMITA DHYANI Signing Date:28.05.2025 18:23:11 W.P.(C) 7296/2025 “1. Delay condoned. 2. Having heard the learned counsel appearing for petitioners and having gone through the materials on record, we see no reason to interfere with the impugned order passed by the High Court. 3. The Special Leave Petition is, accordingly, dismissed. 4. Pending application(s), if any, stands disposed of.”

11. This Court in Mr Makhinder Chopra vs. Commissioner Of Customs New Delhi, (2025:DHC:1162-DB), had the occasion to consider relevant provisions of the Rules, as also the decisions of the Supreme Court and this Court. After analysing the same, this Court held as under: “17. A conspectus of the above decisions and provisions would lead to the conclusion that jewellery that is bona fide in personal use by the tourist would not be excluded from the ambit of personal effects as defined under the Baggage Rules. Further, the Department is required to make a distinction between ‘jewellery’ and ‘personal jewellery’ while considering seizure of items for being in violation of the Baggage Rules.”

12. At this stage it would be relevant to consider the decision of the Madras High Court in Thanushika vs. The Principal Commissioner of Customs (Chennai), W.P. No. 5005/2024 (decided on 31st January, 2025) wherein the High Court was dealing with a case where the gold jewellery of a Sri Lankan tourist was seized by the Customs Department. The High Court after analysing various provisions of the Act and the Rules held that the said Rules would only apply to baggage and would not extend to any article “carried on the person” as mentioned in Rule 3 of the Rule. This Court in Makhinder Chopra (supra) having considered the above decision, observed as under: Signature Not Verified Signed By:NAMITA DHYANI Signing Date:28.05.2025 18:23:11 W.P.(C) 7296/2025 “19. Thus, it is now settled law that the Customs Officials are required to consider the facts of each case and apply their mind before detaining the goods of a tourist, either of Indian or foreign origin. The Customs Officials have to be conscious of the fact that personal effects including jewellery of tourists are protected by the law from detention and same cannot be detained in a mechanical manner.”

13. Thus, it is now settled that the used jewellery worn by the passenger would fall within the ambit of personal effects in terms of the Rules, which would be exempt from detention by the Customs Department.

14. In view of the above and considering the facts of the case, it is clear that the detained jewellery are the personal effects of the Petitioner.

15. The goods are directed to be released through the Petitioner or an authorised representative, within a period of four weeks. In the facts of this case, no warehouse charges shall be liable to be paid by the Petitioner.

16. The petition is disposed of in these terms. Pending application(s), if any, also stand disposed of. PRATHIBA M. SINGH JUDGE RAJNEESH KUMAR GUPTA JUDGE MAY 26, 2025/MR/rks Signature Not Verified Signed By:NAMITA DHYANI Signing Date:28.05.2025 18:23:11 W.P.(C) 7296/2025