1. The learned Departmental Representative raised a preliminary objection stating that Order-in-Original was passed by Shri K.S.Sivaraman in his capacity as Deputy Collector of Customs and as such, appeal against that order shall lie before the Collector of Customs (Appeals), New Delhi and this Tribunal has no jurisdiction to hear an appeal against the said order. He, therefore, argued that appeal filed by the appellant is not maintainable. The learned advocate for the appellant argued that Shri K.S. Sivaraman passed the impugned order in his capacity as Additional Collector of Customs. He also stated that Shri K.S. Sivaraman was appointed as Additional Collector of Customs, Delhi w.e.f. 8.12.86 vide Gazette Notification in 1/87 dated 10.10.1987. He has, therefore, contended that appeal against the impugned order should lie before this Tribunal and not before the Collector of Customs (Appeals), New Delhi. He has stated that the appeal is maintainable and hence, should be heard and decided by this Tribunal. During the hearing before me on 22.4.1988, the learned J.D.R.Shri D.K. Saha read out a letter C. No. VIII/12/ACU/10/124/88/1385 dated 11.3.1988 written by Shri K.S. Sivaraman, Additional Collector of Customs to Ms. Renuta Mann, Office of the Chief Departmental Representative Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi. He, later on, submitted a photo copy of the said letter as directed by the Bench. From copy of the Gazette Notification No. 21/87 dated 10.10.87 filed before me, it is seen that Shri K.S. Sivaraman was appointed as Additional Collector of Customs, Delhi w.e.f. 8.12.86. In his letter dated 11.3.1983 cited above, Shri Sivaraman has stated that he was only Additional Collector of Customs when he adjudicated the case and that at the relevant time he was not notified as Deputy Collector of Customs also. In view of the above position, the preliminary objection raised by the learned Departmental Representative was rejected and the appeal was taken up for hearing.
2. The impugned order is a spot adjudication order passed by the Additional Collector of Customs, Delhi Air Port, New Delhi. The relevant portion of the adjudication order is quoted below :- "Pax was reported at Red counter No. R-4 and given the 0.
Declaration of Rs. 8,300.00 including F/A and were marked for D/E. The goods in excess of O.D. are found as under:------------------------------------------------------- Description.
Quantity.
AssessedValue.------------------------------------------------------ 10. Saree.
158 23,700.00------------------------------------------------------ Rs. 41,700.00 The pax stated that he has brought these items for his sister's marriage. He said that he did not know.
I have carefully gone through the case records. I have also taken into account the points made in the course of P.H. The pax had declared goods worth Rs. 8300/-. From the passport, it is seen that the pax is frequent traveller. Therefore, I cannot accept the contention that he did not know. Goods value at Rs. 41,700/-have been brought by him without declaration. Items at S. Nos. 1 & 7 above can be considered to be of reasonable quantity. Others are in commercial quantity. Goods at S. Nos. 2 to 6 and 8 to 10 cannot be considered as bonafide baggage. They are, therefore, liable to confiscation Under Section. 111 (d). The pass, had not declared the goods. Therefore, all are liable to confiscation Under Section. 111 (I) and 111 (m). I order that all the goods except those at S. Nos.
1 & 7 be confiscated absolutely Under Section. 111 (d) and 111 (m).
The goods at S. Nos. 1 & 7 be confiscated Under Section 111(d), 111(1) and 111 (m). However, I permit the Importer to redeem the two on payment of Rs. 600/-(Rs. six hundred only). I impose P.P. of Rs. 100/- (Rs. one hundred) Under Section 112(1) of C.A., 1962." 3. During the hearing before me, the learned Advocate has argued that appellant was not asked to declare the goods. He has requested that the appellant may be permitted to re-export the goods. In support of his prayer for re-export, the learned advocate has relied on this Tribunal's decision contained in Order No.A-409/87-NRB dated 8.7.87. He has also argued that import of the goods in question is exempted from Import Licence under saving Clause 11 (1) (g) of the Imports (Control) Order, 1955. Arguing for the respondent, Shri D.K.Saha, learned J.D.R.has stated that except items 1 & 7 of the list of the goods shown in the adjudication order, other goods are in commercial quantity.
Passport of the passenger shows that he was regular visitor to India.
The goods confiscated by the Additional Collector were not bonafide personal baggage. These are commercial goods. All consumer goods are absolutely banned items vide serial No. 121 at page 122 of Ap-pendix-2, Part-B of the Import-Export Policy for the years 1985-88. He has also argued that the value of the goods originally declared by the appellant was Rs. 8300/- and on detailed examination the goods valued Rs. 41,700/- were found. As regards prayer for reexport, the learned J.D.R.has stated that re-export can be allowed if the goods were wrongly shipped and in that case re-export fine is also imposed. This is not a case of wrong shipment and hence, re-export should not be allowed.
4. I have gone though the records and have considered the arguments of both sides. As regards the first point of arguments of the learned Advocate that the appellant was not asked to declare goods, I find that this is a case of spot adjudication. The case was adjudicated at the spot and in such a case, the facts are correctly reflected in the adjudication order. It is clearly stated in the adjudication order that the passenger originally declared the goods valued at Rs. 8300/-. It is also stated that in the course of detailed examination goods valued at Rs. 41,700/- in excess of the originally declared goods were found. In the circumstances, I am unable to accept the contention of the learned Advocate that the appellant was not asked to declare the goods.
5. From the list of the goods given in the adjudication order, I find that at serial in two wrist watches valued at Rs. 200/-, at serial in one Attari Game valued at Rs. 400/- have been shown. These two items have been accepted by the adjudicating Additional Collector as articles of baggage. So far as serial No. 2 to 6 and 8 to 10 of the fist of goods are concerned, the Additional Collector has not accepted them to be bonafide articles of baggage. He has held that these goods are in commercial quantity and cannot be considered as bonafide baggage. It is found that at serial in there are 8 V. Cassettes, at serial in there are 9 Cameras, at serial in there are 3 walkmen, at serial in there are 20 Headphones, at serial in there are 107 Calculators, at serial in there are 10 walkie talkies and at serial No. 10 there are 158 sarees.
Considering the nature of the goods and their quantity, I observe that the Additional Collector has correctly held that the articles are in commercial quantity and they cannot be considered as bonafide articles of baggage.
6. According to Clause 11 (1) (g) of the Imports (Control) Order, 1955 no import licence is necessary for passengers baggage to the extent permissible under the Baggage Rules for the time being in force.
Section 79 of the Customs Act, 1962 provides as follows:- (1) The proper officer may, subject to any rules made under Sub-section (2), pass free of duty- (a) any Article in the baggage of a passenger or a member of the crew in respect of which the said officer is satisfied that it has been in his use for such minimum period as may be specified in the rules: (b) any Article in the baggage of a passenger in respect of which the said officer is satisfied that it is for the use of the passenger or his family or is a bonafide gift or souvenir; provided that the value of each such Article and the total value of all such articles does not exceed such limits as may be specified in the rules.
(2) The Central Government may make rules for the purpose of carrying out the provisions of this Section and, in particular, such rules may specify:- (a) the minimum period for which any Article has been used by a pas- senger or a member of the crew for the purpose of Clause (a) of subsection (1); (b) the maximum value of any individual Article and the maximum total value of all the articles which may be passed free of duty under Clause (b) of Sub-section (1); (c) the condition (to be fulfilled before or after clearance) subject to which any baggage may be passed free of duty.
(3) Different rules may be made under Sub-section (2) for different classes of persons." In this connection Section 80 of the Customs Act is also reproduced below: - "80 Temporary detention of baggage.- Where the baggage of a passenger contains any Article which is dutiable or the import of which is prohibited and in respect of which a true declaration has been made under Section 77, the proper officer may, at the request of the passenger, detain such Article for the purpose of being returned to him on his leaving India." Under Sub-section (2) of Section 79 of the Customs Act, the Central Government has framed Baggage Rules, 1978 and the Tourist Baggage Rules, 1978. Rules 2,3 & 4 of Baggage Rules, 1978 introduced under Notification No. 101-Cus. F. No. 495/24/78-Cus. VI dated the 16th. May, 1978 as amended by Notifications No. 213-Cus. dated 13.11.79, No.247-Cus. dated 26.12.1980, No. 57/83-Cus/F. No. Bud/83 and No.166/83-Cus/ F. No. 495/20/83-Cus. VI, read as follows:- "2. Used Personal Effects:- The used articles of personal wear (excluding Jewellery but including not more than one wrist-watch) of value not exceeding five hundred rupees (and articles in personal use of passengers for satisfying daily necessities of life may be passed free of duty).
3. General Free Allowance:- In addition to the articles specified in Rule 2 and subject to the provisions of Rule 9 a passenger of and above the age of 12 years, may also be allowed to import free of duty articles - (a) up to a value of three hundred rupees in the case of a passenger arriving from Sri Lanka or Maldives, and (b) up to a value of one thousand two hundred fifty rupees, in the case of a passenger arriving from a country other than Sri Lanka or Maldives or Nepal, if the proper officer is satisfied that such articles are for the use of the passenger or his family or for making gifts or souvenirs: (i) a passenger below twelve years of age may be allowed to import free of duty articles- (a) up to a value of seventy-five rupees, in the case of a passenger arriving from Sri Lanka or Maldives, and (b) up to a value of three hundred rupees, in the case of a passenger arriving from a country other than Sri Lanka or Maldives or Nepal; (ii) in the case of an air passenger who travels on a free or concessional ticket and returns to India after staying outside India in Sri Lanka or Maldives or both, for less then ten days, articles upto a value of thirty rupees in the case of such adult passenger and seven rupees fifty paise in the case of such passenger below eighteen years of age may only be allowed to be imported free of duty for each day's stay outside India; and (iii) in the case of an air passenger who travels on a free or concessional ticket and returns to India after staying outside India in a country other than Sri Lanka or Maldives or Nepal, for less than ten days, articles up to a value of one hundred and twenty five rupees in the case of such adult passenger and thirty rupees in the case of such passenger below eighteen years of age, may only be allowed to be imported free of duty for each day's stay outside India.
EXPLANATION :- For the purposes of this proviso "concessional ticket" means a ticket issued on after allowing a concession of seventyfive percent or more.
In the case of a passenger who was engaged in his profession abroad for overthree months, articles actually used for running his household, namely, linen, utensils, table-ware, kitchen appliances and iron, upto an aggregate value of one thousand rupees may be imported free of duty".
7. Similarly, I reproduce below paragraphs 3,4,5,6 and 9 of the Tourist Baggage Rules, 1978 introduced under Notification No. 102-Cus/F.No.499/6/78-Cus. VI dated 16.5.1978 as amended by Notifications No.214-Cus. dated 13.11.1979 and No. 211-Cus dated 28.10.1980:- 1. Subject to other conditions laid down in these rules, the personal effects of a tourist shall be allowed to be imported temporarily free of duty; Provided that they are for the personal use of the tourist, are carried on the person or in the baggage accompanying the tourist, that there is no reason to fear abuse and that these personal effects, other than those consumed during his stay, are re-exported by the tourist on his leaving India for a foreign destination.
Explanation: The term personal effects means all clothing and other articles, new or used, which a tourist may personally and reasonably require taking into account all the circumstances of his visit but excluding all merchandise imported for commercial purposes and includes:- (xii) sports equipment such as one fishing outfit, one sporting fire-arm with fifty cartridges, one non-powered bicycle, one canoe or kayac less than 5.5 metres long, one pair of skis, two tennis racquettes.
2. The following may be imported free of duty on the tourist giving a written undertaking in terms of Rule-7 for their re-export on his departure from India, namely: (i) audio-visual aids including slides and films for demonstration and instructional purpose; (ii) professional equipment instruments, apparatus or appliances Including cine-equipments, and television equipments.
In addition to the articles specified in Rule 3, a tourist may also be allowed to import temporarily free of duty, travel souvenirs for a total value not exceeding five hundred rupees; Provided that such souvenirs are carried on the person of or in the baggage accompanying the tourists, are not intended for commercial purposes and are re-exported by the tourist on his leaving India for a foreign destination.
5. Exemption from duty on gifts etc. imported by tourist of foreign origin:- In addition to articles allowed under Rules 3 & 4, a tourist of foreign origin staying in India, for more than 24 hours may also be allowed to import free of duty, at the discretion of the proper officer, articles other than those mentioned in Rule 9 of the Baggage Rules, 1978, upto a value of five hundred rupees if these are intended for personal use or for making gifts.
6. Exemption from customs duty on gifts etc. imported by tourists of Indian origin:- Tourists of Indian origin, who are normally residents abroad and are staying in India for more that 24 hours may allowed to import free of duty, at the discretion of the proper officer, articles intended to be given away as gifts.
Provided that the articles are such as are covered by Rule 3 read with Rule 9 of the Baggage Rules, 1978.
Provided further that all the conditions and limitations mentioned in Rules 3 & 9 of the Baggage Rules, 1978 are satisfied.
Notwithstanding anything contained in these rules, the proper officer may refuse to a tourist, exemption granted by these rules in any of the following cases namely:- (a) When the total quantity of a commodity imported by a tourist ex- ceeds substantially the limit laid down in these rules; 8. The goods which have been confiscated by the Additional Collector are not personal effects of the appellant. The goods also do not fall within the category of household articles, as mentioned in Rule 4 of the Baggage Rules, 1978. The goods imported by the appellant are also not within the value limit prescribed for personal use or making gifts under Rule 3 of the Baggage Rules, 1978 and Rule 5 of the Tourist Baggage Rules, 1978. The articles which may be brought by the Tourists of Indian Origin under Rule 6 of the Tourist Baggage Rules for the purpose of making gifts are restricted to the extent as may be allowed to be imported free of duty at the discretion of the proper officer.
Therefore, under saving Clause 11 (1) (g) the goods which a passenger can bring as baggage are limited to the extent indicated in the aforesaid rules of the Baggage Rules. For allowing any Article as baggage, proper officer must be satisfied about their bonafide as baggage and subject to the extent and limit prescribed in the aforesaid rules. In the present case, the Additional Collector has held that the goods which have been confiscated by the impugned order are not bonafide baggage and the same are in commercial quantity. The impugned goods are not, therefore, protected by the saving Clause 11.(1) (g) of the Imports (Control) Order, 1955. Rule-3 of the Imports (Control) Order, 1955 provides that no person shall import any goods of the description specified in Schedule 1, except under and in accordance with a licence or a customs clearance permit granted by the Central Government or by any officer specified in Schedule II to the said Order. The learned J.D.R. has aruged that the impugned goods are consumable goods and the imports thereof, except under an import licence or a customs clearance permit, is prohibited. This argument of the learned J.D.R. has not been controverted by the learned Advocate, except saying that the goods are protected from requirement of a licence or customs clearance permit under saving Clause 11 (1) (g) of the Imports(Control) order. I have already held that the impugned goods are not protected by the said saving Clause. In Part-B of Appendix-2 of Import & Export Policy for April, 1985 to March, 1988 (Vol. 1), there is a list of restricted items. At serial No. 121 of this list at page 122 of the said Volume -1 of the Import & Export Policy "all consumer goods, howsoever described, of industrial, agricultural or animal origin, not appearing individually in Appendices 3 Part-A and 5 or specifically listed for import under Open General Licence" have been mentioned. The imported goods being prohibited goods, the Additional Collector has rightly confiscated the same under Section 111 (d) of the Customs Act, 1962.1 have already observed earlier that the impugned goods confiscated under the Order-in-Original were not declared by the appellant. They are, therefore, liable to confiscation under Sections 111 (I) and (m) of the Customs Act, 1962. I do not, therefore, find any infirmity in the order of the Additional Collector which has been challenged in this appeal. In these circumstances, the impugned order is upheld and the appeal is dismissed.
9. Under Section 80 of the Customs Act, 1962 re-export is permissible of the goods in respect of which true delcaration has been made under Section 77 of the Customs Act. In this case, since the appellant did not make true declaration in respect of the impugned goods, re-export of the same is not permissible under Section 80 of the Act. In the circumstances, prayer for granting re-export is also rejected. The learned Advocate has relied on a decision of this Tribunal contained in Order No. A-409/87-NRB, dated 8-7-1987. The present case is distinguishable from the case covered by that order inasmuch as the passenger in the said case was a foreign national whereas the present appellant is not a foreign national and in the said case the adjudicating authority had not confiscated the goods on the plea that they had been imported in commercial quantity, whereas in the present case the Additional Collector has clearly held in the impugned order that the goods are in commercial quantity. There being basic differences in the facts of two cases, I am not following the said order to allow re-export of the impugned goods.