Full Judgment
Shri V.H. Doshi arrived at Bombay Airport as a passenger from U.K. on 16-6-1980. On his arrival, he declared before the Customs authorities, for the purpose of clearance, in due course, "One Video and T.V. Colour to arrive by ship. Documents to be produced at the time of clearance".
The unaccompanied baggage arrived by sea on or about 20-8-1980. Baggage Form No. 1534 for the clearance of the unaccompanied baggage consisting of the aforementioned Video and a colour T.V. set was presented to the Customs officer on 20-8-1980. The goods were assessed to duty at 320% ad valorem. The contention of Shri Doshi was that he had made a declaration of his unaccompanied baggage at the time of his arrival on 16-6-1980 and that he was liable to pay duty on the Video and Colour T.V. set only at 120% ad valorem, which was the rate obtaining at the time of his arrival and declaration of the unaccompanied baggage (which was yet to arrive) on 16-6-1980. This contention was rejected by the lower authorities, who held that the declaration for the purpose of clearance of baggage under Section 77 of the Customs Act could be made only after the arrival of the goods, and that any declaration given prior to the arrival of the unaccompanied baggage would not constitute the declaration envisaged under Sections 77 and 78 of the Customs Act, 1962. On this basis, the claim for refund of the difference in duty between 320% and 120%, as claimed by the appellant was rejected by the lower authorities.
2. We have heard Shri N.C. Jain, advocate, for the appellant and Shri K.C. Sachar, Departmental Representative for the respondent.
3. Shri Jain's contention is that the expression 'baggage' used in Section 77 of the Customs Act would include unaccompanied baggage in accordance with the definition of 'baggage' in Section 2(3) of the Customs Act. The appellant had made a declaration of the unaccompanied baggage at the time of his arrival on 16-6-1980. In accordance with the Section 78, the rate of duty applicable to baggage shall be the rate in force on the date on which a declaration is made in respect of such baggage under Section 77.
4. To a query from the Bench whether a bald declaration, namely a Video set and a colour T.V. set, without other relevant particulars such as make, value, etc., would constitute a sufficient declaration for the purpose of Section 77, Shri Jain's reply was that there was substantial compliance with Section 77.
5. Shri Jain cited the Delhi High Court decision in Union of India and Ors. v. Khalil Kecherim reported in 1970 CRI. L.J. 417 (Vol. 76, C.N.94). We have gone through the judgment. The ratio of the decision was that the term 'baggage' in Sections 77 and 80 was not confined to bona fide baggage but included any article contained in baggage even though it be in commercial quantities. We fail to see its relevance to the present case. There is no dispute before us that the unaccompanied baggage in question is anything but baggage.
6. For the Respondent, Shri K.C. Sachar contended that the charging Section was Section 12 even in respect of baggage and not Section 77.
Therefore, there would be no question of charging duty on baggage which was yet to arrive in India. The declaration under Section 77 was for the purpose of clearance through the Customs, i.e. when the goods are available for clearance.
7. We have considered the submissions before us. Shri Sachar is correct in his contention that the charging Section even in respect of baggage is Section 12 of the Customs Act, which provides that duties of Customs shall be levied on goods imported into, or exported from, India.
"Import" has been defined in Section 2(23) of the Act as bringing into India from a place outside India. "Goods" has been defined in Section 2(22) as including baggage. "Baggage" has been defined in Section 2(3) as including unaccompanied baggage. The declaration under Section 77 by the owner of any baggage is for the purpose of clearance of the baggage. For the purpose, of Section 78, the rate of duty is that which is in force on the date on which a declaration is made in respect of the baggage under Section 77. Unless the goods are imported into India there could be no question of making a declaration under Section 77.
There is no provision as in Section 46 occurring in Chapter VII (permitting filing of bill of entry for clearance of goods - cargo - even before their arrival in India) regarding baggage. Chapter VII is not applicable to baggage - see Section 44. Though an advance intimation about the later arrival of the unaccompanied baggage might have been made even at the time of arrival of the passenger, a declaration for the purpose of Section 77 in respect of unaccompanied baggage, which came later, could be deemed to have been made only when the contents of the unaccompanied baggage were declared in the unaccompanied baggage form on the arrival of the unaccompanied baggage.
This declaration was made on 20-8-1980 by which date the rate of duty had gone up to 320%. The refund claimed is not due and it has been correctly rejected by the lower authorities. We reject the appeal.