W.P.(C)/10952/2025 of NURGOZEL ACHILOVA Vs COMMISSIONER OF CUSTOMS

*IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 7[th]August 2025

+W.P.(C) 10952/2025

CORAM:JUSTICE PRATHIBA M. SINGHJUSTICE SHAIL JAIN

Prathiba M. Singh, J. (Oral)

1.This hearing has been done through hybrid mode.

2.The present petition has been filed by the Petitioner- NurgozelAchilova under Article 226 of the Constitution of India, inter alia, seekingrelease of one gold chain weighing 132 grams, and one gold bracelet,weighing 66 grams, (hereinafter, ‘gold items’) of the Petitioner seized by theCustoms Department vide detention receipt dated 16th July, 2024.

3.The case of the Petitioner who is senior citizen and is suffering fromimpaired vision, is that she is foreign national and belongs to Turkmenistan.The Petitioner is present in person in Court today.

4.It is submitted on behalf of the Petitioner that she had travelled to Indiafor medical treatment on 16th July, 2024. Upon arrival at the Indira GandhiInternational Airport, New Delhi, the Petitioner was intercepted by the

W.P.(C) 10952/2025

concerned Customs officials and the said gold items were detained by the

Customs Department.

5.After the appraisal of the gold items, the Order-in-Original waspassed by the Customs Department on 26[th]September 2024. The operativepart of the said Order-in-Original reads as under:

“ORDER

(i)I deny the ‘Free Allowance' if any admissibleto the passenger Ms Nurgozel Achilova for notdeclaring the detained goods to the Proper Officerat Red Channel as well to the Customs Officer atGreen Channel who intercepted her and recoveredthe detained goods from her;to the passenger Ms Nurgozel Achilova for notdeclaring the detained goods to the Proper Officerat Red Channel as well to the Customs Officer atGreen Channel who intercepted her and recoveredthe detained goods from her;

(ii)Ideclarethepassenger,MsNurgozelAchilova as "an ineligible Passenger' for thepurpose of the Notification No. 50/2017-Cus dated30.06.2017 (as amended) read with BaggageRules, 2016 (as amended);Achilova as "an ineligible Passenger' for thepurpose of the Notification No. 50/2017-Cus dated30.06.2017 (as amended) read with BaggageRules, 2016 (as amended);

(iii)I order absolute confiscation of One copperfinished gold chain having average purity 989with gross weight 132 grams having Assessablevalue Rs,8,92,927/- recovered from the Pax underSection 111(d), 111(i), 111(j) & 111(m) of theCustoms Act, 1962;finished gold chain having average purity 989with gross weight 132 grams having Assessablevalue Rs,8,92,927/- recovered from the Pax underSection 111(d), 111(i), 111(j) & 111(m) of theCustoms Act, 1962;

(iv) I order confiscation of One gold bracelethaving average purity 586 with gross weight 66grams having Assessable value Rs.2,64,538/-recovered from the Pax under Section 111(d),111(j) & 111(m) of the Customs Act, 1962having average purity 586 with gross weight 66grams having Assessable value Rs.2,64,538/-recovered from the Pax under Section 111(d),111(j) & 111(m) of the Customs Act, 1962

(v)Igiveanoptiontoredeemthegoodsconfiscated above i.e. One gold bracelet havingaverage purity 586 with gross weight 66 gramshaving Assessable value Rs.2,64,538/- on paymentof fine of Rs.37,000/- (Rupees Thirty seventhousand only) under Section 125 of Customs Act,confiscated above i.e. One gold bracelet havingaverage purity 586 with gross weight 66 gramshaving Assessable value Rs.2,64,538/- on paymentof fine of Rs.37,000/- (Rupees Thirty seventhousand only) under Section 125 of Customs Act,

1962 and allow the same for re-export from Indiaonly by the Pax since the passenger is aTurkmenistan national. The redemption is to beallowed after the completion of legal formalities inthis regard and also fullilment of any regulatoryclearances/ approvals required. The offer ofredemption, if accepted, shall be subject tocondition that the Pax shall not dispute the identityand valuation of the detained goods. The offer ofredemption shall cease after 'One Hundred TwentyDays' from date of the receipt of this order;

(vi) I also impose penalty of Rs.1,20,000/-(Rupees One lakhtwenty thousand only) on thepassenger Ms Nurgozel Achilova under Section112 (a) & 112 (b) of the Customs Act, 1962.

6.Thereafter, an appeal was filed by the Petitioner against the said Order-in-Original. However, the appeal was rejected vide the Order-in-Appeal dated30th June, 2025.

7.In effect, therefore, the Order-in-Original 26[th]September 2024 was tobe given effect to, as per which, the gold chain of the Petitioner has beenabsolutely confiscated and the gold bracelet of the Petitioner was permitted tobe redeemed on payment of fine of Rs. 37,000/-.

8.Ld. Counsel for the Petitioner submits that the said bracelet has sincebeen redeemed by the Petitioner by paying fine to the tune of Rs. 37,000/- andpenalty to the tune of Rs. 1,20,000/- in accordance with the Order-in-Original.However, the gold chain of the Petitioner continues to remain confiscated withthe Customs Department.

9.On the last date of hearing, submission was made on behalf of theRespondent that the Petitioner had waived the Show Cause Notice and the

personal hearing. Hence, the same was not issued and the Order-in-Originalwas passed.

10.On the other hand, ld. Counsel for the Petitioner submits that the goldchain is her personal effect and thus, the continued detention of the same iscontrary to the principles of law.

11.Heard. Photographs of the Petitioner wearing the gold chain in the past,along with her family, have been placed on record, which would show that thesame is her used personal effect. The Petitioner is in fact an eligible passengerin terms of Baggage Rules, 2016 as well. Moreover, she suffers from impairedvision and had travelled to India for medical treatment.

12.In terms of Rule 2(vi) read with Rule 3 of the Baggage Rules, 2016(hereinafter, the “the 2016 Rules”)the Petitioner would be permittedclearance of articles, free of duty in their bona fide baggage, including usedpersonal effects. The relevant provisions of the Rules are extracted hereunder:

“2(vi) “Personal effects” means things required forsatisfyingdaily necessities but does not includejewellery.

3. Passenger arriving from countries other than Nepal,Bhutan or Myanmar:- An Indian resident or foreignerresiding in India or tourist of Indian origin, not beingan infant arriving from any country other than Nepal,Bhutan or Myanmar, shall be allowed clearance free ofduty 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 arecarried on the person or in the accompanied baggage ofthe passenger:

Provided that tourist of foreign origin, not being aninfant, shall be allowed clearance free of duty articlesin his bona fide baggage, that is to say, (a) usedpersonal effects and travel souvenirs; and (b) articlesother than those mentioned in Annexure- I, up to thevalue of fifteen thousand rupees if these are carried onthe person or in the accompanied baggage of thepassenger:

Provided further that where the passenger is an infant,only used personal effects shall be allowed duty free.Explanation.- The free allowance of passenger underthis rule shall not be allowed to pool with the freeallowance of any other passenger.

5. Jewellery.- passenger residing abroad for morethan one year, or return to India, shall be allowedclearance free of duty in his bona fide baggage ofjewellery upto weight, of twenty grams with valuecap of fifty thousands rupees if brought by gentlemanpassenger, or forty grams with value cap of one lakhrupees if brought by lady passenger.

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 exceeding25 or tobacco exceeding 125 gms.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-EmittingDiode/Plasma) television.”Diode/Plasma) television.”

13.The issue whether gold jewellery worn by passenger would fall withinthe 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 CustomsAct, 1962 (hereinafter, the ‘Act’) read with the Baggage Rules, 1998, thatwere in force during the relevant period, held that it is not permissible tocompletely exclude jewellery from the ambit of ‘personal effects’. Therelevant paragraphs of the said order read as under:

“13. Insofar as the question of violation of theprovisions of the Act is concerned, we are of the opinionthat the respondent herein did not violate the provisionsof Section 77 of the Act since the necessary declarationwas made by the respondent while passing through thegreen channel. Such declarations are deemed to beimplicit and devised with view to facilitate expeditiousand smooth clearance of the passenger. Further, as perthe International Convention on the Simplification andHarmonisation of Customs Procedures (Kyoto 18-5-1973), passenger going through the green channel isitself declaration that he has no dutiable or prohibitedarticles.Further, harmonious reading of Rule 7 ofthe Baggage Rules, 1998 read with Appendix (2)(quoted above), the respondent was not carrying anydutiable goods because the goods were the bona fidejewellery of the respondent for her personal use andwas intended to be taken out of India. Also, with regardto the proximity of purchase of jewellery, all thejewellery was not purchased few days before thedeparture of the respondent from UK, large number ofitems had been in use for long period. It did not makeany difference whether the jewellery is new or used.There is also no relevance of the argument that since allthe jewellery is to be taken out of India, it was, therefore,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 meantto be taken out of India with them and it is aprerequisite at the time of making endorsements on thepassport. Therefore, bringing jewellery into India fortaking it out with the passenger is permissible and isnot liable to any import duty.

15. […] Also, from the present facts and circumstancesof the case, it cannot be inferred that the jewellery wasmeant for import into India on the basis of return ticketwhich was found to be in the possession of therespondent. Moreover, we cannot ignore the contentionof the respondent that her parents at the relevant timewere in Indonesia and she had plans of proceeding toIndonesia.Some of the jewellery items purchased bythe respondent were for her personal use and somewere intended to be left with her parents in Indonesia.The High Court has rightly held that when she broughtjewellery of huge amount into the country, therespondent did not seem to have the intention tosmuggle the jewellery into India and to sell it off. Evenon the examination of the jewellery for costing purposes,it has come out to be of Rs 25 lakhs and not Rs 1.27crores as per DRI.The High Court was right in holdingthat it is not the intention of the Board to verify thenewness of every product which traveller brings withhim as his personal effect. It is quite reasonable that atraveller may make purchases of his personal effectsbefore embarking on tour to India. It could be of anypersonal effect including jewellery. Therefore, its“newness is of no consequence. The expression newgoods” in their original packing has to be understoodin pragmatic way.”

14.This Court in Mr Makhinder Chopra vs. Commissioner Of CustomsNew Delhi, 2025:DHC:1162-DB, had the occasion to consider the relevant

provisions of the Rules, as also the decisions of the Supreme Court and thisCourt. After analysing the same, this Court held as under:

“17. conspectus of the above decisions and provisionswould lead to the conclusion that jewellery that is bonafide in personal use by the tourist would not be excludedfrom the ambit of personal effects as defined under theBaggage Rules. Further, the Department is required tomake distinction between ‘jewellery’ and ‘personaljewellery’ while considering seizure of items for beingin violation of the Baggage Rules.”

15.At this stage it would be relevant to consider the decision of the MadrasHigh Court in Thanushika vs. The Principal Commissioner of Customs(Chennai), W.P. No. 5005/2024 (decided on 31st January, 2025) wherein theHigh Court was dealing with case where the gold jewellery of Sri Lankantourist was seized by the Customs Department. The High Court afteranalysing various provisions of the Act and the Rules held that the said Ruleswould only apply to baggage and would not extend to any article “carried onthe person” as mentioned in Rule 3 of the Rule. This Court in MakhinderChopra (supra) having considered the above decision, observed as under:

“19.Thus, it is now settled law that the CustomsOfficials are required to consider the facts of each caseand apply their mind before detaining the goods of atourist, either of Indian or foreign origin.The CustomsOfficials have to be conscious of the fact that personaleffects including jewellery of tourists are protected bythe law from detention and same cannot be detained ina mechanical manner.”

16.In Saba Simran v. Union of India & Ors., 2024:DHC:9155-DB, theDivision 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 Indiantourist. The relevant paragraphs of the said judgement are as under:

“15. The expression ‘jewellery’ as it appears in Rule2(vi) would thus have to be construed as inclusive ofarticles newly acquired as opposed to used personalarticles of jewellery which may have been borne on theperson while exiting the country or carried in itsbaggage.Thus, personal jewellery which is not foundto have been acquired on an overseas trip and wasalways used personal effect of the passenger wouldnotbesubjecttothemonetaryprescriptionsincorporated in Rules 3 and 4 of the 2016 Rules.

16. This clearly appeals to reason bearing in mind theunderstanding of the respondents themselves and whichwas explained and highlighted in the clarificatoryCircular referred to above. That Circular had come tobe issued at time when the Appendices to the 1998Rules had employed the phrase “used personal effects,excluding jewellery”.The clarification is thus liable tobe appreciated in the aforesaid light and the statutoryposition as enunciated by the respondents themselvesrequiring the customs officers to bear distinctionbetween “personal jewellery” and the word “jewellery”when used on its own and as it appears in theAppendices.This position, in our considered opinion,would continue to endure and remain unimpacted bythe provisions contained in the 2016 Rules.”

17.The above mentioned decision of the Division Bench of this Court waschallenged before the Supreme Court in SLP(C) No. 011281 / 2025 titledUnion of India & Ors. v. Saba Simran. The Supreme Court, while dismissingthe said challenge, held as under:

“1. Delay condoned.

2. Having heard the learned counsel appearing for thepetitioners and having gone through the materials onrecord, we see no reason to interfere with the impugnedorder passed by the High Court.

3. The Special Leave Petition is, accordingly, dismissed.

4. Pending application(s), if any, stands disposed of.”

18.Thus, it is now settled that used jewellery worn by the passenger,especially foreign visitor, would fall within the ambit of personal effects interms of the Rules, which would be exempt from detention by the CustomsDepartment.

19. Additionally, the order-in-original in this case does not give any reason asto why the gold bracelet has been permitted to be redeemed but the gold chainhas been absolutely confiscated. The same is completely illogical, inasmuch asthe same logic would apply both for the bracelet and for the gold chain. Thegold chain is weighing 132 grams and the bracelet is weighing 66 grams, thePetitioner was permitted to redeem the same. The detained jewellery beingpersonal effects of the Petitioner, the detention of the same itself would becontrary to law.

20.It is further noted that no Show Cause Notice has been issued in this caseas the Customs Department is relying on the standard pre-printed waiver thatwas obtained from the Petitioner. The validity of such pre-printed waiver ofSCN and personal hearing has been considered by this Court in various matters,including in Amit Kumar v. The Commissioner of Customs, 2025:DHC:751-DB and Mr Makhinder Chopra vs Commissioner of Customs New Delhi,2025:DHC:1162-DB. The operative portion of the judgement in Amit Kumar

(supra) is as under:

“16. perusal of Section 124 of the Act along with thealleged waiver which is relied upon would show thatthe oral SCN cannot be deemed to have been served inthis manner as is being alleged by the Department. Ifan oral SCN waiver has to be agreed to by the personconcerned, the same ought to be in the form of properdeclaration,consciouslysignedbythepersonconcerned. Even then, an opportunity of hearingought to be afforded, inasmuch as, the personconcerned cannot be condemned unheard in thesematters.Printedwaiversofthisnaturewouldfundamentally violate rights of persons who areaffected. Natural justice is not merely lip-service. It hasto be given effect and complied with in letter and spirit.

17. The three-pronged waiver which the form containsis not even decipherable or comprehensible to thecommon man. Apart from agreeing as per the said formthat the oral SCN has been served, the person affectedhas also waived right for personal hearing. Such aform in fact shocks the conscience of the Court, that tooin cases of the present nature where travellers/touristsare made to run from pillar to post for seeking releaseof detained goods.

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19. This Court is of the opinion that the printed waiverof SCN and the printed statement made in the requestfor release of goods cannot be considered or deemed tobe an oral SCN, in compliance with Section 124. TheSCN in the present case is accordingly deemed to havenot been issued and thus the detention itself would becontrary to law. The order passed in original withoutissuance of SCN and without hearing the Petitioner, isnot sustainable in law. The Order-in-Original dated29th November, 2024 is accordingly set-aside”

21.Further, this Court in Makhinder Chopra (supra) had analysedSection 124 of the Customs Act, 1962 (hereinafter “the Act”) whileconsidering the issue of waiver of show cause notice and personal hearing.The Court while replying on the decision in Amit Kumar (supra) held asunder:

“23. As mentioned above, the Customs Department hasrelied upon the undertaking in standard form dated 17thJune, 2024 signed by the Petitioner, wherein the Petitionerhas waived of issuance of the show cause notice and personalhearing. It is an admitted position that no show cause noticehas been issued to the Petitioner on the basis of the saidundertaking.

24. The issuance of show cause notice before confiscationof goods by the Customs officials is covered under Section124 of the Act, which reads as under: “

“124. Issue of show cause notice before confiscation ofgoods, etc.— No order confiscating any goods orimposing any penalty on any person shall be made underthis Chapter unless the owner of the goods or suchperson—

(a) is given notice in writing with the prior approval ofthe officer of Customs not below the rank of an AssistantCommissioner of Customs, informing him of the groundson which it is proposed to confiscate the goods or toimpose penalty;

(b) is given an opportunity of making representation inwriting within such reasonable time as may be specifiedin the notice against the grounds of confiscation orimposition of penalty mentioned therein; and

(c) is given reasonable opportunity of being heard in thematter:

Provided that the notice referred to in clause (a) and therepresentation referred to in clause (b) may, at the requestof the person concerned be oral.

Provided further that notwithstanding issue of noticeunder this section, the proper officer may issue asupplementary notice under such circumstances and insuch manner as may be prescribed.”

25.A perusal of the above Section would show that theprinciples of natural justice have to be followed by theCustoms Department before detention of the goods. The-Section provides threefold requirement:i) notice in writing informing the grounds of confiscation;

ii) An opportunity of making representation in writingagainst the said grounds of confiscation;

iii) reasonable opportunity of personal hearing.

26. In terms of proviso to the said Section, the CustomsAuthority may issue an oral show cause notice to the touristin lieu of written show cause notice at the request of thesaid tourist.However, in the opinion of the Court theundertaking in standard form as relied upon by theCustoms Department waiving the issuance of show causenoticeandpersonalhearingwouldnotsatisfytherequirements of Section 124 of the Act.

27. This Court recently in Amit Kumar v. The Commissionerof Customs, 2025:DHC:751 DB was considering similarfacts wherein the Petitioner had also signed an undertakingwaiving show cause notice and personal hearing. The Courthad analysed and discussed the validity of such undertakingvis-à-vis Section 124 of the Act. [...]

28In view of the above observations, it is clear that theundertaking signed by the Petitioner in the present casecannot be sustained in law. Accordingly, the Customs

Department has failed to satisfy the requirements of Section124 of the Act in the present case. Therefore, the detention ofthe Petitioner’s gold chain has to be set aside.

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34.Since, the Court has made clear that the practice ofmaking tourists sign undertaking in standard formwaiving the show cause notice and personal hearing iscontrary to the provisions of Section 124 of the Act,hereinafter,theCustomsDepartmentisdirectedtodiscontinue the said practice. The Customs Department isexpected to follow the principles of natural justice in eachcase where goods are confiscated in terms of Section 124 ofthe Act.”

22.Thus, the law is well settled, that the Customs Department cannot relyon pre-printed waiver of show cause notice as the same would be contrary tothe requirement of Section 124 of the Customs Act. In light of the abovediscussion, it is clear that the continued detention or seizure of goods by theCustoms Department would be untenable in law, where the show cause noticeor the personal hearing have been waived via pre-printed waiver.

23.Accordingly, in the facts of this case, since no show cause notice hasbeen issued to the Petitioner due to pre-printed waiver, the gold chain wouldbe liable to be released to the Petitioner.

24.Mr. Tripathi, ld. Counsel for the Department also submits that in termsof Section 129 DD of the Customs Act, the Petitioner has remedy to approachthe Revisional Authority against the Order-in-Appeal.

25.In the opinion of this Court, considering that the Order-in-Original dated26[th]September 2024, sought to make completely baseless distinction betweentwo different gold items, which are both the personal effects of the Petitioner

and given the peculiar facts of this case, where the Petitioner is senior citizen,who has travelled to India for medical treatment, the present writ petition hasbeen entertained.

26.Accordingly, the Petitioner shall collect her gold chain, either in personor through an Authorised Representative, in which case, the detained goodsshall be released after receiving proper email from the Petitioner or some formof communication that the Petitioner has no objection to the same beingreleased to the concerned Authorised Representative.

27.The Petitioner being foreign national, is willing to re-export the goldchain. Thus, the same is directed to be released in favour of the Petitioner, forre-export, subject to payment of 50% of the warehouse charges. Since theIndian Visa of the Petitioner is stated to be expiring by the end of August 2025,she shall visit the Customs Department on 13[th]August 2025, at 11:30 A.M. forthe release of her gold chain.

28.Accordingly, the petition stands disposed of. Pending applications, ifany, are also disposed of.

PRATHIBA M. SINGHJUDGE

AUGUST 7, 2025/pd/ss

SHAIL JAINJUDGE