W.P.(C)/5080/2025 of VAVVO Vs COMMISSIONER OF CUSTOMS

$~26*IN THE HIGH COURT OF DELHI AT NEW DELHIDate of Decision: 29[th]May, 2025

CORAM:JUSTICE PRATHIBA M. SINGHJUSTICE RAJNEESH KUMAR GUPTA

Prathiba M. Singh, J. (Oral)

1.This hearing has been done through hybrid mode.

2.The Petitioner was returning to India from Mecca, Saudi Arabia afterperforming religious pilgrimage (“Umrah”) on 11[th]February, 2024. She waswearing two gold bangles weighing 115 grams (hereinafter, ‘detainedarticles’) which were detained by the Customs Department and the same wereseized.

3.The Petitioner is stated to have visited the Customs Department forrelease of detained articles on multiple occasions. However, the same has notbeen released. It is the case of the Petitioner that no show cause notice(hereinafter, ‘SCN’) has been issued in this matter and no personal hearinghas been granted.

4.Ms. Anushree Narain, ld. Sr. Standing Counsel for Respondent submits

that an Order-in-Original has been passed in this case on 01[st]August, 2024.The same has been handed over to the Court today. Let it be taken on record.A perusal of the said Order-in-Original dated 1st August, 2024, would showthat the standard pre-printed waiver of SCN and personal hearing has beenstated to be signed by the Petitioner. The relevant paragraphs of the order-in-original are set out below:

“2.The passenger Ms Vavvo holding Indian passport No.B8149099 (hereinafter referred as 'the Pax') arrived at IGIAirportTerminal-3,NewDelhibyflightSV-756dated11.02.2024 and opted for Green Channel. She was intercepted bythe Customs Officer after she had already crossed the GreenChannel and after her personal and baggage search "Two yellowmetal bangles weighing 115 grams" were found in her possessionandweredetainedvideDetentionReceipt(DR)No.DR/INDEL4/11.02.2024/003759 dated 11.02.2024 with remarkGreen Channel violation.

3.The Pax in her statement dated 11.02.2024 tenderedunder Section 108 of the Customs Act, 1962 interalia stated thatshe was intercepted by the Customs Officer after she had crossedthe Green Channel and during the DFMD and Xray, the abovesaid items were recovered from her, that the above mentionedrecovered items did not belong to her; that she admits her act ofomission and commission on her part, that she is well aware ofthe fact that there is Customs duty on import of above goods; thatshe would be agreeing with the description, quantity and value tobe assessed by the department; that she was ready to pay theCustoms duty along with fine/penalty/duty. She further stated thatshe had tendered her statement true and correct, without anyduress, pressure or threat.Further, she stated that she did notwant Show Cause Notice and Personal Hearing in the matter.

4.Mr. Manoliar Lal Verma, Advocate submitted SpecialPower of Attorney dated 24.02.2024 on behalf of the Pax. Mr.

Manohar Lal Verma, Advocate (hereinafter referred to as the ARofthePax)hasBarCouncilofDelhiEnrolmentNo.D/14802/2023 and has his residence address as P.Np.85-86-87, Top Floor, Back side, Kakrola, Hari Vihar, Delhi-110078.The AR of the Pax submitted request letter dated 13.03.2023requesting for Release of the detained goods wherein he furtherinter-alia submitted that the Pax had arrived from Saudi Arabiaby flight No.SV-756 dated 11.02.2024 and she opted for GreenChannel but did not declare any dutiable item which she broughtin her baggage namely two yellow metal bangles and hence thegoods were detained. It is further submitted that the detainedgoods are meant for personal purpose. It was requested thatRelease of the detained goods be permitted. It is furthersubmitted that the Pax regrets her mistake of opting for GreenChannel and requested for lenient view in the matter. It issubmitted that she did not want any written show cause noticeand personal hearing in the matter and that her case be decidedon merit and that an oral SCN has been received.”5.From perusal of the above paragraphs of the Order-in-Original, it alsoappears that Special Power of Attorney holder had appeared on behalf of thePetitioner before the Customs Department. The order-in-original has finallydirected for absolute confiscation of the detained articles and payment of fineand penalty of Rs.70,000/-. The same is set out below:

21.In view of the foregoing, I pass the following order:ORDER

“i) I deny the 'Free Allowance", if any, adınissible to the Pax Ms. Vavvo for not declaring the detained goods to the ProperOfficer at Red Channel as well to the Customs Officer at GreenChamel who intercepted her and recovered the detained goodsfrom her.

ii)I declare the passenger Ms Vavvo as an "ineligible

Passenger" for the purpose of the Notification No. 50/2017-Customs dated 30.06.2017 (as amended) read with BaggageRules, 2016 (as amended).

iii)I order absolute confiscation of Two Gold bangles havingaverage purity 996 with gross and net weight 115 grams havingAssessable value Rs.6,85,486/- recovered from the Pax Ms Vavvoand detained vide DR No. DR/INDEL4/11.02.2024/003759 dated11.02.2024 under section 111(d), 111(i), 111(j) and 111(m) of theCustoms Act, 1962;

iv)I impose penalty of Rs.70,000/- (Rupees SeventyThousand Only) on the Pax Ms Vavvo under section 112 (a) and112(b) of the Customs Act, 1962.”

6.After having perused the matter, it is clear that the non-issuance of theSCN would go to the root of the matter. The pre-printed standard waiver ofSCN is contrary to law as it violates the basic principles of natural justice.Moreover, in the cases of Mr Makhinder Chopra vs. Commissioner ofCustoms, New Delhi, 2025:DHC-1162-DB and Amit Kumar v. TheCommissioner of Customs, 2025:DHC:751-DB this Court has discussedvarious issues arising in such cases where the goods have been detained froma tourist by the Customs Department, including the issue of personal jewellerybeing part of personal effects under the Baggage Rules, 2016 and waiver ofSCN and personal hearing by way of preprinted waiver form. The relevantextracts of the said decisions are as under:

“-Amit Kumar v. The Commissioner of Customs, 2025:DHC:751DB

“19.This Court is of the opinion that the printed waiver of SCNand the printed statement made in the request for release ofgoods cannot be considered or deemed to be an oral SCN, in

compliance with Section 124.The SCN in the present case isaccordingly deemed to have not been issued and thus the detentionitself would be contrary to law. The order passed in originalwithout issuance of SCN and without hearing the Petitioner, is notsustainable in law. The Order-in-Original dated 29th November,2024 is accordingly set-aside”

Mr Makhinder Chopra vs. Commissioner of Customs, NewDelhi, 2025:DHC-1162-DB

“17.A conspectus of the above decisions and provisions wouldlead to the conclusion thatjewellery that is bona fide in personaluse by the tourist would not be excluded from the ambit ofpersonal effects as defined under the Baggage Rules.Further,the Department is required to make distinction between‘jewellery’ and ‘personal jewellery’ while considering seizure ofitems for being in violation of the Baggage Rules.

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34.Since, the Court has made clear thatthe practice ofmaking tourists sign undertaking in standard form waiving theshow cause notice and personal hearing is contrary to theprovisions of Section 124 of the Act,hereinafter, the CustomsDepartment is directed to discontinue the said practice. TheCustoms Department is expected to follow the principles of naturaljustice in each case where goods are confiscated in terms ofSection 124 of the Act.”

7.Further, the detained articles also clearly appear to be used personaleffects of the Petitioner. In terms of Rule 2(vi) read with Rule 3 of theBaggage Rules, 2016 (hereinafter, the ‘the 2016 Rules’) the Petitioner wouldbe permitted clearance of articles, free of duty in their bona fide baggage,including used personal effects. The relevant provisions of the Rules areextracted hereunder:

“2(vi) “Personal effects” means things required for satisfying

daily necessities but does not include jewellery.

3. Passenger arriving from countries other than Nepal, Bhutan orMyanmar:- An Indian resident or foreigner residing in India ora tourist of Indian origin, not being an infant arriving from anycountry other than Nepal, Bhutan or Myanmar, shall be allowedclearance free of duty articles in his bona fide baggage, that is tosay, -

(a) used personal effects and travel souvenirs; and(b) articles other than those mentioned in Annexure-I, up to thevalue of fifty thousand rupees if these are carried on the person orin the accompanied baggage of the passenger:

Provided that tourist of foreign origin, not being an infant, shallbe allowed clearance free of duty articles in his bona fidebaggage, that is to say, (a) used personal effects and travelsouvenirs; and (b) articles other than those mentioned inAnnexure- I, up to the value of fifteen thousand rupees if these arecarried on the person or in the accompanied baggage of thepassenger:

Provided further that where the passenger is an infant, only usedpersonal effects shall be allowed duty free. Explanation.- The freeallowance of passenger under this rule shall not be allowed topool with the free allowance of any other passenger.

5. Jewellery.- passenger residing abroad for more than oneyear, or return to India, shall be allowed clearance free of duty inhis bona fide baggage of jewellery upto weight, of twenty gramswith value cap of fifty thousands rupees if brought by agentleman passenger, or forty grams with value cap of one lakh

rupees 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 exceeding 25 ortobacco exceeding 125 gms.

4. Alcoholic liquor or wines in excess of two litres.

5. Gold or silver in any form other than ornaments.6.FlatPanel(LiquidCrystalDisplay/Light-EmittingDiode/Plasma) television.”

8.The issue whether gold jewellery worn by passenger would fall withinthe ambit of personal effects under the Rules, has now been settled by variousdecisions of the Supreme Court as also this Court. The Supreme Court in theDirectorate 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 the provisions of theAct is concerned, we are of the opinion that the respondent hereindid not violate the provisions of Section 77 of the Act since thenecessary declaration was made by the respondent while passingthrough the green channel. Such declarations are deemed to beimplicit and devised with view to facilitate expeditious andsmooth clearance of the passenger. Further, as per the

InternationalConventionontheSimplificationandHarmonisation of Customs Procedures (Kyoto 18-5-1973), apassenger going through the green channel is itself declarationthat he has no dutiable or prohibited articles.Further, aharmonious reading of Rule 7 of the Baggage Rules, 1998 readwith Appendix (2) (quoted above), the respondent was notcarrying any dutiable goods because the goods were the bonafide jewellery of the respondent for her personal use and wasintended to be taken out of India. Also, with regard to theproximity of purchase of jewellery, all the jewellery was notpurchased few days before the departure of the respondent fromUK, large number of items had been in use for long period. Itdid not make any difference whether the jewellery is new or used.There is also no relevance of the argument that since all thejewellery is to be taken out of India, it was, therefore, deliberatelybrought to India for taking it to Singapore. Foreign tourists areallowed to bring into India jewellery even of substantial valueprovided it is meant to be taken out of India with them and it isa prerequisite at the time of making endorsements on thepassport. Therefore, bringing jewellery into India for taking itout with the passenger is permissible and is not liable to anyimport duty.

15. […] Also, from the present facts and circumstances of the case,it cannot be inferred that the jewellery was meant for import intoIndia on the basis of return ticket which was found to be in thepossession of the respondent. Moreover, we cannot ignore thecontention of the respondent that her parents at the relevant timewere in Indonesia and she had plans of proceeding to Indonesia.Some of the jewellery items purchased by the respondent werefor her personal use and some were intended to be left with herparents in Indonesia. The High Court has rightly held that whenshe brought jewellery of huge amount into the country, therespondent did not seem to have the intention to smuggle thejewellery into India and to sell it off. Even on the examination ofthe jewellery for costing purposes, it has come out to be of Rs 25

lakhs and not Rs 1.27 crores as per DRI.The High Court wasright in holding that it is not the intention of the Board to verifythe newness of every product which traveller brings with himas his personal effect. It is quite reasonable that traveller maymake purchases of his personal effects before embarking on atour to India. It could be of any personal effect includingjewellery. Therefore, its newness is of no consequence. Theexpression “new goods” in their original packing has to beunderstood in pragmatic way.”

9.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 validityof 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 Rule 2(vi) wouldthus have to be construed as inclusive of articles newly acquiredas opposed to used personal articles of jewellery which may havebeen borne on the person while exiting the country or carried inits baggage.Thus, personal jewellery which is not found to havebeen acquired on an overseas trip and was always usedpersonal effect of the passenger would not be subject to themonetary prescriptions incorporated in Rules 3 and 4 of the 2016Rules.

16. This clearly appeals to reason bearing in mind theunderstanding of the respondents themselves and which wasexplained and highlighted in the clarificatory Circular referred toabove. That Circular had come to be issued at time when theAppendices to the 1998 Rules had employed the phrase “usedpersonal effects, excluding jewellery”.The clarification is thusliable to be appreciated in the aforesaid light and the statutoryposition as enunciated by the respondents themselves requiringthe customs officers to bear distinction between “personal”“”jewellery and the word jewellery when used on its own and asit appears in the Appendices.This position, in our consideredopinion, would continue to endure and remain unimpacted by

”the provisions contained in the 2016 Rules.

10.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 the petitionersand having gone through the materials on record, we see no reasonto interfere with the impugned order passed by the High Court.

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

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

11.This Court in Mr Makhinder Chopra vs. Commissioner Of CustomsNew Delhi, 2025:DHC:1162-DB, had the occasion to consider the relevantprovisions 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 provisions wouldlead to the conclusion that jewellery that is bona fide in personaluse by the tourist would not be excluded from the ambit of personaleffects as defined under the Baggage Rules. Further, theDepartment is required to make distinction between ‘jewellery’and ‘personal jewellery’ while considering seizure of items forbeing in violation of the Baggage Rules.”

12.Thus, it is now settled that the used jewellery worn by the passengerwould fall within the ambit of personal effects in terms of the Rules, whichwould be exempt from detention by the Customs Department.

13.In view of the above and considering the facts of the case, it is clear

that the detained articles are the personal effects of the Petitioner.

14.The detained articles being personal effects of the Petitioner, thedetention of the same itself would be contrary to law. Accordingly, thedetained articles would be liable to be released on this ground itself. The golditems shall be released by the Customs Department to the Petitioner.

15.Petitioner may collect the detained goods in person or through anAuthorised Representative, in which case, the detained goods shall bereleased after receiving proper email from the Petitioner or some form ofcommunication that the Petitioner has no objection to the same being releasedto the concerned Authorised Representative.

16.In view thereof, the impugned Order-in-Original dated 1st August,2024 is set aside to the extent that it orders absolute confiscation. ThePetitioner shall however pay the penalty of Rs.70,000/- and 50% of thewarehousing charges.

17.Petition is disposed of in these terms. All pending applications, if any,are also disposed of.

PRATHIBA M. SINGHJUDGE

MAY 29, 2025v/ss

RAJNEESH KUMAR GUPTAJUDGE