W.P.(C)/9466/2025 of AGYA SINGH Vs COMMISSIONER OF CUSTOMS

*IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 10[th]July, 2025

CORAM:

JUSTICE PRATHIBA M. SINGHJUSTICE RAJNEESH KUMAR GUPTA

Prathiba M. Singh, J. (Oral)

1.This hearing has been done through hybrid mode.CM APPL. 39976/2025 (exemption)

2.Allowed, subject to all just exceptions. The application standsdisposed of.

W.P.(C) 9466/2025

3.The present petition has been filed by the Petitioner- Agya Singhunder Article 226 of the Constitution of India, inter alia, seeking release ofone gold chain, weighing 115 grams seized by the Respondent videdetention receipt bearing no. DR/INDEL4/11-11-2022/000828 dated 11thNovember 2022.

4.The case of the Petitioner is that he was traveling from Bangkok toNew Delhi on 11[th]November, 2022. Upon his arrival at the IGI Airport,

New Delhi, his gold chain weighing 115 grams which he is stated to havebeen wearing was detained by the Customs Department. The detentionreceipt was issued to the Petitioner however, no appraisal of the gold chainhas been done till date. Moreover, no Show Cause Notice (hereinafter,‘SCN’) has been issued to the Petitioner.

5.Mr. Parminder Singh Sandhu, ld. Counsel for the Petitioner submitsthat after serving of the present writ petition upon the Respondent, thepersonal hearing notice has been issued to the Petitioner on 08[th]July, 2025fixing the hearing for 11[th]July, 2025, 18[th]July, 2025 and 25[th]July, 2025.

6.Mr. Avijit Dikshit, ld. Counsel for the Respondent submits that thePetitioner may appear for appraisal following which the proceedings shall beconducted.

7.Heard. Once the goods are detained, it is mandatory to issue SCNand afford personal hearing to the Petitioner. The time prescribed underSection 110 of the Customs Act, 1962 (hereinafter, ‘the Act’), is period ofsix months. However, subject to complying with the requirements therein, afurther extension for period of six months can be taken by the CustomsDepartment for issuing the SCN. In this case, the one year period itself haselapsed, yet no SCN has been issued. Accordingly, the detention isimpermissible.

8.Further, in so far as personal effects are concerned, in terms of Rule2(vi) read with Rule 3 of the Baggage Rules, 2016 (hereinafter, the “the2016 Rules”) the Petitioner would be permitted clearance of articles, free ofduty in their bona fide baggage, including used personal effects. Therelevant provisions of the Rules are extracted hereunder:

“2(vi) “Personal effects” means things required for satisfyingdaily necessities but does not include jewellery.

3. Passenger arriving from countries other than Nepal, Bhutanor Myanmar:- An Indian resident or foreigner residing in Indiaor tourist of Indian origin, not being an infant arriving fromany country other than Nepal, Bhutan or Myanmar, shall beallowed clearance free of duty 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 thevalue of fifty thousand rupees if these are carried on the personor in the accompanied baggage of the passenger:

Provided that tourist of foreign origin, not being an infant,shall be 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 theseare carried 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.- Thefree allowance of passenger under this rule shall not beallowed to pool 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 dutyin his bona fide baggage of jewellery upto weight, of twentygrams with value cap of fifty thousands rupees if brought by

gentleman passenger, 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 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.”

9.The issue whether gold jewellery worn by passenger would fallwithin the ambit of personal effects under the Rules, has now been settled byvarious decisions of the Supreme Court as also this Court. The SupremeCourt in the Directorate of Revenue Intelligence and Ors. v. PushpaLekhumal Tolani, [(2017) 16 SCC 93], while considering the relevantprovisions of the Customs Act, 1962 (hereinafter, the ‘Act’) read with theBaggage Rules, 1998, that were in force during the relevant period, held thatit is not permissible to completely exclude jewellery from the ambit of‘personal effects’. The relevant 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 respondentherein did not violate the provisions of Section 77 of the Actsince the necessary declaration was made by the respondentwhile passing through the green channel. Such declarations aredeemed to be implicit and devised with view to facilitateexpeditious and smooth clearance of the passenger. Further, as

per the International Convention on the Simplification andHarmonisation 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 respondentfrom UK, large number of items had been in use for longperiod. It did not make any difference whether the jewellery isnew or used. There is also no relevance of the argument thatsince all the jewellery is to be taken out of India, it was,therefore,deliberatelybroughttoIndiafortakingittoSingapore. Foreign tourists are allowed to bring into Indiajewellery even of substantial value provided it is meant to betaken out of India with them and it is prerequisite at the timeof making endorsements on the passport. Therefore, bringingjewellery into India for taking it out with the passenger ispermissible and is not liable to any import duty.

15. […] Also, from the present facts and circumstances of thecase, it cannot be inferred that the jewellery was meant forimport into India on the basis of return ticket which was found tobe in the possession of the respondent. Moreover, we cannotignore the contention of the respondent that her parents at therelevant time were in Indonesia and she had plans of proceedingto Indonesia.Some of the jewellery items purchased by therespondent were for her personal use and some were intendedto be left with her parents in Indonesia. The High Court hasrightly held that when she brought jewellery of huge amountinto the country, the respondent did not seem to have theintention to smuggle the jewellery into India and to sell it off.Even on the examination of the jewellery for costing purposes, it

has come out to be of Rs 25 lakhs and not Rs 1.27 crores as perDRI.The High Court was right in holding that it is not theintention of the Board to verify the newness of every productwhich traveller brings with him as his personal effect. It isquite reasonable that traveller may make purchases of hispersonal effects before embarking on tour to India. It couldbe of any personal effect including jewellery. Therefore, itsnewness is of no consequence. The expression “new goods” intheir original packing has to be understood in pragmatic”way.

10.In Saba Simran v. Union of India & Ors., 2024:DHC:9155-DB, theDivision Bench of this Court was seized with the issue of deciding thevalidity of the seizure of gold jewellery by the Customs Department from anIndian tourist. 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 tohave been 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 the2016 Rules.

16. This clearly appeals to reason bearing in mind theunderstanding of the respondents themselves and which wasexplained and highlighted in the clarificatory Circular referredto above. 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 andas it appears in the Appendices.This position, in our considered

opinion, would continue to endure and remain unimpacted by”the provisions contained in the 2016 Rules.

11.The above mentioned decision of the Division Bench of this Courtwas challenged before the Supreme Court in SLP(C) No. 011281 / 2025titled Union of India & Ors. v. Saba Simran. The Supreme Court, whiledismissing the said challenge, held as under:

“1. Delay condoned.

2.Havingheard the learnedcounselappearingfor thepetitioners and having gone through the materials on record, wesee no reason to interfere with the impugned order passed by theHigh Court. 3. The Special Leave Petition is, accordingly,dismissed. 4. Pending application(s), if any, stands disposed of.”

12.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 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.”

13.Thus, it is now settled that 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. In view of theabove and considering the facts of the case, it is clear that the detained

jewellery are the personal effects of the Petitioner. Accordingly, the detainedjewellery would be liable to be released.

14.Under such circumstances, the detention of the Petitioner’s jewelleryis not tenable. Accordingly, the said detention is set aside.

15.The Petitioner shall appear before the Customs Department on 18[th]July, 2025 and may collect the detained jewellery through an AuthorisedRepresentative, in which case, the detained jewellery shall be released afterreceiving proper email from the Petitioner or some form of communicationthat the Petitioner has no objection to the same being released to theconcerned Authorised Representative.

16.In the facts of this case, considering that for the last almost threeyears, the Customs Department has not taken any action, warehousingcharges shall stand waived.

17.Accordingly, the petition is disposed of. Pending applications, if any,are also disposed of.

PRATHIBA M. SINGHJUDGE

JULY 10, 2025/v/ck

RAJNEESH KUMAR GUPTAJUDGE