Fahmida Abdul Hai Vs. Collector of Customs - Court Judgment

Excerpt:
1. the question to be decided by us in this misc. application is whether this tribunal has got jurisdiction to hear and decide the appeal filed by the applicant against the order-in-appeal no. 1826/88 bagg (file no. s/49-588/88-b dated nil (in column no. 2 of the c.a. 3 form it is stated that the orderin-appeal was issued on 10-10-1988 and received by the appellant after 18-10-1988) passed by the collector of customs (appeals), bombay. if the goods involved in this proceeding are treated as "baggages", this tribunal will have no jurisdiction to decide the appeal, but if the goods are other than "baggages" then this tribunal will have the jurisdiction to decide the appeal.2. we have heard shri u .k. sharma for the applicant and smt v. zutshi for the respondent. shri sharma has argued that.....

Judgment:
1. The question to be decided by us in this Misc. Application is whether this Tribunal has got jurisdiction to hear and decide the appeal filed by the applicant against the order-in-appeal No. 1826/88 Bagg (File No. S/49-588/88-B dated nil (in column No. 2 of the C.A. 3 Form it is stated that the orderin-appeal was issued on 10-10-1988 and received by the appellant after 18-10-1988) passed by the Collector of Customs (Appeals), Bombay. If the goods involved in this proceeding are treated as "Baggages", this Tribunal will have no jurisdiction to decide the appeal, but if the goods are other than "Baggages" then this Tribunal will have the jurisdiction to decide the appeal.

2. We have heard Shri U .K. Sharma for the applicant and Smt V. Zutshi for the respondent. Shri Sharma has argued that Section 2(22) of the Customs Act, 1962 defined goods, which, inter-alia, include baggage.

According to Section 2(3) "Baggage" includes unaccompanied baggage but does not include motor vehicles. The term "baggage" has not been defined as such in the Customs Act or in the Baggage Rules framed thereunder. He has, however, argued that the term 'baggage' pre-supposes 'passenger' since there is no passenger in this case, the goods cannot be termed as "baggage". Baggage is related to a passenger.

The same may accompany the passenger or it may arrive separately either before or after arrival of the passenger. In support of this argument, the learned advocate has relied on paragraphs 7-9 of the judgment of Delhi High Court, reported in 1970 Cri. L.J. 417 (The Union of India and Ors. v. Khalil Kecherim). He has also argued that in the baggage declaration form the name of the passenger was written as 'Late Miss Ayesha Humaira Farooki'. He has also argued that in the exemption notifications No. 85-Cus. dated 5-8-1967 and No. 107-Cus. dated 19-7-1968, the bonafide personnel and household effect of a deceased person have been exempted from customs duty. In the said notifications the word 'baggage' has not been used. Even in the orders of the lower authorities they have not treated the goods as baggage. Instead of that in the preamble of the impugned order a direction has been given that an application for revision Under Section 129 DD of the Customs Act, 1962 shall lie with the Joint Secretary to the Govt. of India, Ministry of Finance, Department of Revenue, New Delhi. According to the learned advocate, the jurisdiction to hear the appeal lies with this Tribunal and not with the Ministry of Finance.

3. Smt. Zutshi has stated that there may be similar cases in the other Custom Houses including Delhi Custom House. She has prayed for time to ascertain the practice followed in this Custom Houses in dealing with such cases.

4. We have gone through the records of the case and the arguments of the learned advocate. We are of the view that it is not necessary to adjourn this Misc. Application to another date for ascertaining the practice followed by the other Custom Houses in dealing with the such cases. In our view the arguments of the learned advocate have considerable force. We are also of the opinion that the term "baggage" is related to a 'passenger'. In this case no passenger is involved. The goods which are the subject matter of this proceeding are stated to belong to a deceased person and the papers for clearance of the same from Customs have been filed by the applicant who claims the goods on the basis of a Will. The owner of the goods died in U.K. after suffering from Cancer. The death is also not in the course of her journey to or from India. Therefore, the goods are not related to a passenger. According to the learned advocate, "baggage" pre-supposes a passenger. In this view of the matter, we hold that these goods cannot be treated as baggage and hence the jurisdiction to decide the appeal filed by the applicant lies with this Tribunal. To this extent, the Misc. Application is allowed by us.

5. The learned advocate has relied on paragraphs 7-9 of the judgment reported in 1970 Cri. L.J. 417 in the case of Union of India and Ors.

v. Khalil Kecherim. The said paragraphs are reproduced below :- "7. The expression "baggage" has not been defined by the said Act but it is included in the definition of "goods" in Sub-section. (22) of Section 2. The definition of "goods" given in his act is an inclusive definition and, apart from baggage, it also includes "any other kind of moveable property". One argument of the appellants is that since "bagage" is included in "goods", the latter cannot be included in the former. This argument loses sight of the fact that "any other kind of moveable property" is also in eluded in the definition of "goods". Any item of moveable property or any article' which may be "goods" can, therefore, be a part of or contained in "baggage".

8. In the said Act and the rules framed thereunder a distinction has been made between "baggag;" and "bona fide baggage". Section 79 talks of bona fide baggage which is exempt from customs duty and in respect of bona fide baggage the proper officer has been empowered to pass free of duty any article which is in the baggage of a pass snger and which has been in his use for a prescribed minimum period or it is for his use or is a bona fide gift or souvenir. Therefore, any article in the baggage of a passenger even though it may be "goods" within the meaning of the Act will be allowed to be imported free of duty if it is passed Under Section 79 of this Act. I, therefore, do not find any force in the contention that an article of moveable property which is included in "goods" cannot be included in "baggage".

9. Baggage is synonymous with luggage. Webster gives the following meaning of baggage: "a group of travelling bags, trunks, or both especially when packed and in transit; personal belongings of travellers either carried by hand or checked with a carrier; luggage".

The Shorter Oxford English Dictionary gives the following meaning to baggage :- 'The collection of property in packages that a traveller takes with him on a journey: luggage." Therefore, the word "baggage" is a comprehensive term which means the luggage of a passenger, accompanied or unaccompanied, and comprises of the trunks or bags and the personal belongings of the passenger contained therein and it must be in this comprehensive sense in which "baggage" has been used in Sections 77 and 80 of the Customs Act. If "baggage" in Section 80 of this Act means only bona fide baggage as contemplated by Clause 3 of the Tourist Baggage Rules, 1958, there will hardly be any occasion for the application of Section 80 of the Customs Act. I am, therefore, of the opinion that "baggage" has to be given the larger and ordinary meaning." The view taken by us is quite in conformity with the definitions quoted in paragraph 9 of the High Court judgment supra.