Supreme Court of India
DIRECTORATE OF REVENUE INTELLIGENCE AND OTHERSversusPUSHPA LEKHUMAL TOLANI
- Citation
- 2017 INSC 772
- Decided
- 18 August 2017
- Disposal
- Dismissed
- Bench
- R K AGRAWAL
Holding
The jewellery was personal effects of a tourist, exempt from duty, and the respondent did not violate Sections 77 or 78 of the Customs Act, 1962.
Summary
The Directorate of Revenue Intelligence (DRI) intercepted Ms. Pushpa Lekhumal Tolani at Delhi airport on a tip that she was carrying gold and diamond jewellery concealed in her baggage and attempting to pass through the Green Channel without duty. A search under the Customs Act, 1962 uncovered 44 jewellery items worth Rs. 1.27 crore, leading to a show‑cause notice and confiscation order. Tolani challenged the notice and order before the Delhi High Court, which quashed them on the ground that the jewellery constituted personal effects of a tourist and was exempt from duty under the Baggage Rules, 1998. The DRI appealed to the Supreme Court, arguing that the items were dutiable, that Tolani failed to declare them, and that the high value indicated smuggling intent. The Supreme Court held that passing through the Green Channel constitutes an implicit declaration of no dutiable goods, the jewellery was bona‑fide personal effects intended for re‑export, and sections 77 and 78 of the Customs Act did not apply. Consequently, the Court dismissed the appeal, upheld the High Court’s decision, and ordered the expungement of the DRI’s remarks.
Issues considered
- Whether the respondent violated Section 77 of the Customs Act, 1962 by failing to declare the jewellery.
- Whether Section 78 of the Customs Act, 1962 is applicable to the seized jewellery.
- Whether the jewellery constitutes dutiable goods or personal effects exempt under the Baggage Rules, 1998.
- Whether the show‑cause notice and confiscation order should be quashed.
Legislation cited
- Customs Act, 1962s. 102, s. 132, s. 135(1)(a), s. 77, s. 78
Subjects
CustomsSmugglingPersonal effectsGreen ChannelImport duty exemptionBaggage Rules, 1998Show‑cause noticeConfiscationVAT refund
Judgment
[2017] 7 S.C.R. 711
DIRECTORATE OF REVENUE INTELLIGENCE AND OTHERS A
v.
PUSHPA LEKHUMAL TOLANI
(Civil Appeal No. 4403 of 2010)
B
AUGUST 18, 20 l 7
[R.K. AGRAWAL AND PRAFULLA C. PANT, JJ.[
Customs Act, 1962 - ss. 77, 78 - Smuggling - Gold and
diamond jewellery - Items claimed to be personal effects - Bringing C
jewellery into India for taking it out with the passenger is permissible
and is not liable to any import duty ~ Even as per EXIM Code
Numbers 7113 19 20 and 7113 19 30 of ITC (HS) Classification of
Export and Import items as on 01.04.2002, the import of gold
jewellery studded with diamonds or with other precious stones, is
freely allowed - Jn the instant case, in the absence of any facts on D
record about the nature and mode of concealment and also any
finding of the lower authority that jewellery brought by respondent
was kept in a way to evade detection on examination of the baggage,
it has to be held that there was no concealment as such - Respondent
. chose the Green Channel for clearance of her baggage - She E
committed no violation of law or infraction of any instruction for
clearance of the baggage through the green channel as she being
a tourist had no dutiable goods to declare under the Baggage Rules
- Similarly, the invocation of s. 78 of the Act is of no use as this
Section applied only to dutiable and prohibited goods - The
accusation of not declaring the goods to the customs authority and F
evading duty alleged to be due thereupon has no legal basis - Also,
with regard to the proximity ofpurchase ofjewellery, all the jewellery
was not purchased a few days before the departure of the respondent
from UK, a large number of items had been in use for a long period
- The presumption that the jewellery found in her baggage cannot G
be considered as personal effects owning to its high monetary value
is rebutted - Respondent was entitled to import personal jewellery
duty free - Jn the facts and circumstances of this case, the .remarks
against the appellant from the judgment passed by the High Court
are expunged - Baggage Rules, 1998 - r. 7.
H
711
712 SUPREME COURT REPORTS [2017] 7 S.C.R.
A Dismissing the appeal the Court
HELD: 1. Insofar as the question of violation of the
provisions of the Act is concerned, the respondent did not violate
the provisions of Section 77 of the Act since the necessary
declaration was made by the respondent while passing through
B the Green Channel. Such declarations are deemed to be implicit
and devised with a view to facilitate expeditious and smooth
clearance of the passenger. Further, as per the International
Convention on the Simplification and Harmonization of Customs
Procedures, (Kyoto 18.05.1973), a passenger going through the
c 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), 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
D proximity of purchase of jewellery, all the jewellery was not
purchased a few days before the departure of the 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,
E
deliberately brought to India for taking it to Singapore. Foreign
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 pre-requisite at the time of making endorsements on the
passport. Therefore, bringing jewellery into India for taking it
F out with the passenger is permissible and is not liable to any
import duty. Even as per EXIM Code Numbers 7113 19 20 and
7113 19 30 of ITC (HS) Classification of Export and Import items
as on 01.04.2002, the import of gold jewellery studded with
diamonds or with other precious stones, is freely· allowed.
G Similarly,the invocation of section 78 of the Act is of no use as
this Section applied only to dutiable and prohibited goods. The
accusation of not declaring the goods to the customs authority
and evading d·uty alleged to be due thereupon has .no legal basis.
.... [Para 9) [721:~-H; 722-A-F)
H
DIRECTORATE OF REVENUE INTELLIGENCE v. PUSHPA 713
LEKHUMAL TOLAN!
2. With regard to t_he intention of the respondent to take A
back the jewellery to England is concerned, the air ticket sought
to be relied upon by the DRI is not of much <:onsequence. In the
reply affidavit filed before this Court by the respondent, it has
been submitted that the so called. enquiry conducted by the
appellant-D~ subsequent to the passing of the Judgment by the B
High, ~ou~t was adJ!littedly done aft.er the, expiry of more than
1,185 days. The respondent left for London on 01.03.2007 and
return~d to Delhi on 06.03'.2001. It was further me~tioned.in the
reply affidavit "that the (act of return of the respondent to india
· was been' delibe~ately concealed by the appellant-DR!. In fact,
the respondent had travelled to London to attend a doctor's C
~ppoin~ipe~t ~~th ~er ~~~ghter who. ~as. upwell at the relevant
time. Further, there i_s no restri<:!!on in UK h•w which prohibits a
person claim.ing VAT in London from re.importing the items on
which VAT has been claim~·d at~ later ~~te., Als~ from the instant
facts and circumstances of the· case, it cannot be inferred that the
jewellery ~:is mea~t for impo.rt into I~dia on the basis of return D
ticket which was found to be hi the possession of the respondent.
Moreover, 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. E
in Indonesia. The High Court rightly held that when she brought
jewellery of a huge amount into the country, the 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 came out to Rs. 25 lakhs and not Rs. 1.27
F
crores as per the 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 traveler may make purchases of his
personal effect_s before embarking on a tour to India. It could be
of any personal effect including jewellery. Therefore, its newness G
is of no consequence. The expression "new goods" in their
original packing has .to be understood in a pragmatic way. [Para
10) (722-F-H; 723-A-E]
H
714 SUPREME COURT REPORTS [2017] 7 S.C.R.
A 3. In the absence of any facts on record about the nature
and mode of concealment and also any finding of the lower
authority that jewellery was kept in a way to evade detection on
examination of the baggage, it has to be held that there was not
concealment as such. It is seen that the respondent chose the
Green Channel for clearance of her baggage. She committed no
B
violation of law or infraction of any instruction for clearance of
the baggage through the green channel as she being a tourist
had no dutiable goods to declare under the Baggage Rules. The
presumption that the jewellery found in her baggage cannot be
considered as personal effects owning to its high monetary value
c is rebutted herewith and that the respondent was entitled to
import personal jewellery duty free. In the facts and
circumstances of this case, it will be just and proper to expunge
the remarks against the appellant from the judgment passed by
the High Court. Therefore, the strictures passed against the
D appellant are expunged. (Paras 11, 121 (723-F-H; 724-A-B(
CIVIL APPELLATE JURISDICTION : Civil Appeal No.4403
of 2010.
From the Judgment and Final Order dated 04.09.2009 and
13.09.2006 of the High Court of Delhi at New Delhi in Review Petition
E No. 335/2009 and W.P. (C) No. 6633/2003 respectively.
Ranjit Kumar, SG, Rana Mukherjee, Sr. Adv., Ms. Binu Tamta,
Abhinav Mukherji, B. Krishna Prasad,Advs. for the Appellant.
Sidharth Luthra, Sr. Adv. T. V. Ratnam, Ms.Anisha Banerjee,
F M. Swori Dev, Senkara Kaushik, Gautam Khanchi, Ms.Tara Narula,
Madhav Khurana, Advs. for the Respondent.
The Judgment of the Court was delivered by
R.K. AGRAWAL, J. 1. The present appeal has been filed against
G the final judgments and orders dated 13. 09 .2006 and 04. 09 .2009 passed
by the Division Bench of the High Court of Delhi in W.P. (C) No. 6633
of2003 and Review Petition No. 335 of2009 respectively whereby the
High Court allowed the writ petition filed by the respondent herein while
dismissing the review petition.
H
DIRECTORATE OF REVENUE INTELLIGENCE v, PUSHPA 715
LEKHUMAL TOLAN! [R.K. AGRAWAL, J.]
2. Brief facts: A
(a) On 19.11.2002, on the basis of specific intelligence tip off to
the effect that one lady named Ms. Pushpa Lekhumal Tolani-the
respondent herein, who was scheduled to arrive at !GI Airport from
London, would be carrying gold and diamond jewellery and other valuable
goods concealed in her bags and would pass through the Green Channel B
without the payment of the customs duty, the officers of the Directorate
of Revenue Intelligence (DRI), Hqrs. Office, New Delhi, kept a watch
on her and as soon as she was about to cross the exit gate after passing
through the Green Channel, she was intercepted and was asked whether
she has any dutiable item to declare to which she replied in negative. A C
search was conducted under Section 102 of the Customs Act, 1962
(hereinafter referred to as 'the Act') and 28 packages containing 44
items of jewellery worth Rs. 1.27 crores were recovered from two hand
bags. On the very same day, the respondent was produced before the
Additional Chief Judicial Magistrate and was remanded to judicial custody
and she remained there till 26.11.2002. D
(b) On 12.12.2002, a show-cause notice was issued to the
respondent by the then Assistant Director, Directorate of Revenue
Intelligence, asking her to show-cause as to why the seized goods should
not be confiscated under the Act. On 14.08.2003, the competent authority,
passed a detailed order confiscating absolutely the new articles valued E
at Rs. 86,52,765/-, confiscationofseizedjewelleryworthRs. 40,47,235/
-with redemption clause on payment of fine of Rs. 3,00,000/-and penalty
to the tune of Rs. 15,00,000/-. Vide order dated 27 .09 .2004, Additional
Chief Metropolitan Magistrate, New Delhi, found the respondent guilty
under Sections 132 and 135(1)(a) of the Act and sentenced to Ul)dergo F
imprisonment for the period already undergone and imposed a fine of
Rs. 6 lakhs.
(c) Being aggrieved by the show-cause notice dated 12.12.2002
and order dated 14.08.2003, the respondent herein filed Writ Petition
(C) No. 6633 of 2003 before the High Court of Delhi. The Division G
Bench of the High Court, vide order dated 13.09.2006 allowed the writ
petition and quashed the show-cause notice and order dated 14.08.2003
. and directed for release of the goods. In view of the aforesaid judgment,
H
716 SUPREME COUR:r REPORTS [2017] 7 S.C.R.
A the appeal filed by the respondent herein against the conviction passed
by the Additional Chief Metropolitan Magistrate was allowed by the
Additional Sessions Judge vide order dated 11.04.2007.
(d) Aggrieved by the decision of the High Court, the appellant
filed a review petition being No. 335 of2009. The Division Bench of the
B High Court, vide order dated 04.09.2009, dismissed the said review
petition.
•J
(e) Aggrieved by the orders dated 13.09.2006 and 04.09.2009,
the appellant has preferred this appeal by way of special leave.
C 3. Heard the arguments advanced by Mr. Ranjit Kumar, learned
Solicitor General for the appellant and Mr. Sidharth Luthra, learned senior
· counsel for the respondent and perused the records.
Point(s) for consideration:
D 4. The only point for consideration before this Court is whether in
the present facts and circumstances of the case, the show-cause notice
dated 12.12.2002 and order dated 14.08.2003 are liable to be quashed or ·
not?
Rival contentions:
E
5. Learned Solicitor General, appearing on behalf of the appellant-
DRI, contended that many of the items seized like gold and diamond
studded tie pins, tie clips, metal collar etc., which cannot be used by a
lady, cannot be termed as personal effects under the Baggage Rules,
1998. Similarly, the articles which are newly purchased as evidenced by
F the invoices and are of extremely high value as well as the articles
belonging to other persons besides the passenger cannot be termed as
personal effects. Learned Solicitor General further contended that the
High Court failed to appreciate that in the scheme of law, there is
exemption from duty on goods upto a specified value in the case of
G passenger baggage but there is no exemption from making a true and
correct declaration by a passenger. Fucyher, the respondent had filed a
form before she left Eqgland wherein she claimed refund of VAT which
clearly indicates that she had the intention of not taking the goods back
H
DIRECTORATE OF REVENUE INTELLIGENCE v. PUSHPA 717
LEKHUMAL TOLAN! [R.K. AGRAWAL, J.]
to England from where she had purchased them. Learned Solicitor A
General further contended that the jewellery was brought to India ang
attempted to be passed through the Green Channel and the respondent
was responsible for smuggling the same. In fact, on return of the seized
jewellery, the respondent herein directly went back to London instead of
Indonesia, contrary to the assertion made before the High Court in the B
Writ Petition, which was held to be a ground in her favour for ascertaining
her 'intention' before the High Court. Learned Solicitor General finally
contended that the conduct of the respondent after release of the goods
· had misled the court and the judgment of the High Court on the pretext
of personal effects is liable to be set aside.
6. Per contra, learned senior counsel for the respondent submitted
c
that as per Rule 7 of the Baggage Rules 1998, a tourist arriving in India
shall be allowed clearance free of duty, articles in his bona fide baggage
to the extent mentioned in Column (2)Appendix-E which indicates "used
personal effects" for personal use of the tourist in India which, if not
consumed, could be re-exported when the tourist leaves India for a foreign D
destination. Hence, the charge that the respondent did not make any
declaration under Section 77 of the Act is not correct as the respondent
was not carrying any dutiable/prohibited items and the jewellery she
was carrying was bona fide jewellery. Further, with regard to the
contention of VAT refund, learned senior counsel submitted that the same E
has been refuted by the customs authorities in the United Kingdom stating
that claimant of VAT is neither prohibited nor debarred from taking the
. jewellery, on which VAT has been reclaimed, back to United Kingdom,
if she so chooses and in view of the same her return to London cannot
be doubted. Learned senior counsel finally contended that the High
Court was right in arriving at the conclusion that the goods were personal F
effects and for the personal use of the respondent and no interference is
sought for by this Court.
Discussion:- '
7. On 19 .11.2002, the officers of the Directorate of Revenue G
Intelligence intercepted the respondent herein, who was passing through
the Green Channel, on a tip off that the respondent herein is scheduled
to arrive at IGI Airport from London and carrying gold and diamond
H
718 SUPREME COURT REPORTS [2017] 7 S.C.R.
A jewellery along with other valuable items and she would not declare the
same to Customs and pass through Green Channel without payment of
customs duty. On being asked, the lady replied that she had nothing ta
declare. On examination of the handbags being carried by the respondent
herein several gold and diamond jewellery items were found worth
B Rs. 1.27 crores. On being asked by the DR! officials, it was informed
that the items are personal effects and no duty is leviable on the same.
However, the DR! officials seized the items under the provisions of the
Act with reasonable belief that the said items were smuggled into India
in contravention of provisions of the Act and hence are liable to be
confiscated. After following the due procedure, a show-cause notice
C dated 12.12.2002 was issued to the respondent herein. The respondent
herein filed her reply to the show-cause notice denying each and every
allegation leveled against her. On 14.08.2003, an order was passed by
the Additional Commissioner of Customs, IGI Airport, New Delhi
directing confiscation of the jewellery on certain terms and conditions
D contained in the order. The respondent herein preferred a writ petition
being No. 6633 of 2003 challenging the show-cause notice dated
12.12.2002 and the order of the Additional Commissioner dated
14.08.2003 before the High Court. The Division Bench·of the High
Court, vide order dated 13.09.2006 allowed the writ petition and vide
order dated 04 .09 .2009 dismissed the review petition filed by the appellant
E against the order dated 13.09.2006.
8. ln the above backdrop, it is relevant to quote certain provisions
of the Baggage Rules, 1998 as well as the Circulars dated 24.09.1998
and 18.02.2000 issued by the Ministry of Finance which are as under:-
F Definitions.-
"2. (iii) "tourist" means a person not normally resident in India,
who enters India for a stay of not more than six months in the
course of any twelve months period for legitimate non-immigrant
purposes, such as touring, recreation, sports, health, family reasons,
G ·study, religious pilgrimage or business;
7. Tourists.-A tourist arriving in India shall be allowed clearance
free of duty articles in his bona fide baggage to the extent mentioned
in column (2) of Appendix E.
H
DIRECTORATE OF REVENUE INTELLIGENCE v. PUSHPA 719
LEKHUMAL TOLAN! [R.K. AGRAWAL, J.)
A-
Appendix E
1 2
Articles allowed free of duty
a xxxx xxxxx
b Tourists of foreign I .Used personal B
origin other than effects and travel
those of Nepalese souvenirs, if -
origin coming from
Nepal or of
Bhutanese origin c
commg from
Bhutan or
Pakistan iginal
commg from
Pakistan
c
D
a These goods, are
for personal use
of the tourist and-
b These goods, other E
than those consumed
during the stay in
India, are re-exported
when the tourist
leaves India for a
foreign destination. F
ii Articles upto a value
of Rs.8,000/- for
making gifts
c xxxx I xxxxx
G
d xxxx I I xxxxx
H
720 SUPREME COURT REPORTS [2017] 7 S.C.R.
A Circular No. 72/98-Customs
Dated 24/09/1998
F.No. 520/136/92-CUS-Vl
Government of India
Ministry of Finance
Department of Revenue, New Delhi
B
1.xxxxx
2.xxxxx
3. The Baggage Rules, 1998 issued vide Notn. No. 30/98-Cus(NT)
dated 2/6/98 has provided for import of duty free goods by tourists in
C Regulation 7 as contained in Appendix E of the said rules. There is no
definition for personal effects in the present Baggage Rules. However,
for the sake of uniformity it is considered necessary to reiterate that the
personal effects would include the following goods:-
(i) Personal jewellery
D
(ii) One camera with filmrolls not exceeding twenty
(iii) One video camera/camcorder with accessories and with video
cassettes not exceeding twelve
(iv) One pair of binoculars
E (v) One portable colour television (not exceeding 15 ems in size)
(vi) One music system including compact disc player
(vii) One portable typewriter
(viii) One permabulator
F
(ix) One tent and other camping equipment
(x) One computer (laptop/note book)
(xi) One electronic diary
(xii) One portable wireless receiving set (transistor radio)
G
(xiii) Professional equipments, instruments and Apparatus of
appliances including professional audio/video equipments.
(xiv) Sports equipments such as one fishing outfit, one sporting
fire arm with fifty cartridges, one non-powdered bicycles,
H
DIRECTORATE OF REVENUE INTELLIGENCE v. PUSHPA 721
LEKHUMAL TOLAN! [R.K. AGRAWAL, J.]
one canoe or ranges less than 51 metres long, one pair of skids, two A
tennis rackets, one golf set (14 pcs. With a dozen of gold balls.)
(xv) One cell phone ·
4. It may kindly be noted that while Notn. No. 45/92 defined
personal effects as articles both new or used and Rule 11 of Baggage
Rules 1994 allowed personal effects of tourists for duty free import, the B
Baggage Rules 1998 allows only used personal effects of the tourists. It
is not the intention of the Board to verify the newness of every product
which a traveler brings so long as it is not prima facie new goods in their
original packagings which can be disposed of off hand.
(emphasis supplied by us) c
Sd/-
(Vijay Kumar)
Under Secretary to the Govt. of India
F.No. 495/29/99-Cus-Vl
D
Government of India
Ministry of Finance
Department of Revenue, New Delhi
Central Board of Excise & Customs
New Delhi, the 18'h Feb, 2000
E
Subject: Baggagt<Rules-Tourist baggage-no endorsement of imports
of personal effects on tourists' passports
1. xxxxx
2.xxxxx
F
3. It may kindly be ensured that all genuine tourists are allowed to
bring in their personal effects without endorsement on the passports and
without payment of duty, subject to the terms and conditions prescribed
· in the Baggage rules, 1998."
(emphasis supplied by us)
G
9. 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
H
722 SUPREME COURT REPORTS (2017] 7 S.C.R.
A Channel. Such declarations are deemed to be implicit and devised with
a view to facilitate expeditious and smooth clearance of the passenger.
Further, as per the International Convention on the Simplification and
Harmonization of Customs Procedures (Kyoto 18.05.1973), 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
B
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 oflndia. Also, with regard to the proximity
of purchase ofjewellery, all the jewellery was not purchased a few days
c before the departure of the 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
D 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
pre-requisite 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. Learned senior counsel
brought to our notice that even as per EXIM Code Numbers 7113 19 20
E and 7113 19 30 of ITC (HS) Classification of Export and Import items
as on 01.04.2002, the impo1t of gold jewellery studded with diamonds or
with other precious stones, is freely allowed. Similarly, learned senior
counsel rightly submitted that the invocation of Section 80 of the Act is
of no use as this Section applies only to dutiable and prohibited goods.
The accusation of not declaring the goods to the customs authority and
F evading duty alleged to be due thereupon has no legal basis.
I 0. With regard to the intention of the respondent to take back the
jewellery to England is concerned, we do not think that the air ticket
sought to be relied upon by the DRI is of much consequence. In the
reply affidavit dated 20.10.2014 filed before this Court by the respondent
G herein, it has been submitted that the so called enquiry conducted by the
appellant-DR! subsequent to the passing of the judgment by the High
Court was admittedly done after the expiry of more than I, I 85 days.
The respondent herein left for London on 01.03.2007 on Jet Airways
flight No. 9W-0122 and returned to Delhi on 06.03.2007 on Jet Airways
H
DIRECTORATE OF REVENUE INTELLIGENCE v. PUSHPA 723
LEKHUMAL TOLAN! [R.K. AGRAWAL, J.]
flight No. 9W-0121. It has been further mentioned in the reply affidavit A
that the fact of return of the re.spondent herein to India has been
deliberately concealed by the appellant-ORI. In fact, the respondent
had travelled to London to attend a doctor's appointment with her daughter
who was unwell at the relevant time. Further, there is no restriction in
UK law which prohibits a person claiming VAT in London from
B
re-importing the items on which VAT has been claimed at a later date.
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 the 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 C
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 into the country, the
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 D
costing purposes, it has come out to be of Rs. 25 lakhs and not Rs. 1.27
crores as per the 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 traveler brings with him as his personal effect. It is quite reasonable
that a traveler may make purchases of his personal effects before E
embarking on a tour to India. It could be of any personal effect including
jewellery. Therefore, its newness is of no consequence. The expression
. "new goods" in their original packing has to be understood in a pragmatic
way.
Conclusion:- F
11. We are of the considered opinion that in the absence of any
facts on record about the nature and mode of concealment and also any
finding cifthe lower authority that jewellery was kept in a way to evade
detection on examination of the baggage, it has to be held that there was
no concealment as such. It is seen that the respondent chose the Green G
Channel for clearance of her baggage. She committed no violation of
law or infraction of any instrnction for clearance of the baggage through
the green channel as she being a tourist had no dutiable goods to declare
under the Baggage Rules. The presumption that the jewellery found in
her baggage cannot be considered as personal effects owing to its high
H
724 SUPREME COURT REPORTS [2017] 7 S.C.R.
A monetary value is rebutted herewith and we hold that the respondent
was entitled to import personal jewellery duty free.
12. In the facts and circumstances of this case, it will be just and
proper to expunge the remarks against the appellant from the judgment
passed by the High Court. ·Therefore, the strictures passed against the
B appellant are expunged.
13. In view of the foregoing discussion, we are of the considered
opinion that the High Court was right in setting aside the show-cause
notice dated 12.12.2002 and order dated 14.08.2003 passed by the
competent authority. There is no scope to interfere in the orders passed
c by the Division Bench of the High Court. There is no merit in this appeal
and the appeal is, therefore, dismissed with no order as to costs. However,
it is made clear that the present conclusion is confined only to the disposal
of this appeal.
Devika Gujral Appeal dismissed.
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