K. Gopal Hegde, Member (J)
1. The revision application filed before the Central Govt. against the order-in-appeal bearing No. S/49-350/82-P, dated 30-6-1982 passed by the Appellate Collector of Customs, Bombay, statutorily stood transferred to the Tribunal for being heard as an appeal.
2. The subject of challenge in this appeal is the absolute confiscation of a gold chain with the locket containing gold biscuit having the inscription of a bird on one side and credit suisse 5 tolas fine gold 999.9 on the other side. The appellant at the relevant time was a non-resident Indian. On her arrival, she declared all the baggage items including the gold chain with 5 tolas gold biscuit. The Assistant Collector of Customs permitted the facility under TBRE in respect of gold bangles but did not allow TBRE facility in respect of gold chain which had the locket with a gold biscuit. He held the gold chain is a crude jewellery and, therefore, it is prohibited item for import. On that ground he ordered absolute confiscation of the gold chain, with the locket totally valued at Rs. 14,520/-. On appeal, the Collector (Appeals) confirmed the order. In his order the Collector (Appeals) observed "it cannot be said that its identity as a gold biscuit is changed by either making the figure of a bird on one side or suspending it to a gold chain. It is also a fact that the chain to which the locket is suspended is of more than normal length, weight and purity. But there is no allegation that it was not declared by the passenger on her arrival. The passenger has also been granted a TBRE form for the gold bangles worn by her. She is also resident abroad. There is a provision in Section 80 Customs Act, according to which duitable or prohibited goods which have been correctly declared may be detained at the request of the passenger for being taken out of India. It seems from the case records that no such request was made by the passenger who apparently wanted to clear it failing which, a request has now been made for permitting re-export. I agree with the Assistant Collector's finding that the article is not an item of jewellery; it has correctly been described as crude jewellery and therefore gold bullion, the import of which is prohibited. Section 80, Customs Act has no application to this case because there is nothing to show that the passenger straight away herself asked for detention of the gold chain and the biscuit to be returned to her at the time of departure from India. Keeping these facts in mind, I do not think that the benefit of section 80, Customs Act can be extended even at this stage". Shri Raichandani appearing for the appellant vehementally contended that the finding of the authorities below that the gold chain is not a jewellery is erroneous. He also contended that even if the gold chain and the biscuit are prohibited for import, since a true declaration had been made, the Asstt. Collector as well as the Appellate Collector ought to have allowed re-export. In this connection Shri Raichandani placed reliance on the provisions of Section 80 as well as the decision of this Tribunal reported in 1985 (21) ELT 341 Mohd. Bin Ahmed vs. Collector of Customs. Shri Raichandani incidentally referred to the decision of the very Collector (Appeals) in another case where the Collector had allowed re-export in respect of two gold chains with pendant 140 grams valued at Rs. 17,500/- even though there was no declaration. Shri Raichandani had produced the photostat copy of the order dated 12.8.82 in appeal bearing order No. S/49-504/82-P. Finally, Shri Raichandani prayed that the appellant may be allowed to re-export the gold chain with the pendant.
3. Shri Senthivel appearing for the Collector however contended that according to the findings of the Assistant Collector as well as the Appellate Collector the chain in question is not a jewellery but a gold bullion and, therefore, there is no scope to invoke the provisions of Section 80. Shri Senthivel also contended that the request for detention was not made immediately after arrival but only when the customs authorities took action to confiscate. Shri Senthivel urged if a person is allowed re-export gold smuggled into India then every smuggler on detention would request the customs authorities to permit him to re-export. Such a facility should not be allowed and it was not contemplated by Section 80. Shri Senthivel submitted that the chain and biscuit are inseparatable link. He, therefore, prayed that the appeal may be rejected.
4. I have carefully considered the submissions made on both the sides. Undisputedly, the appellant had made true declaration of the gold chain including the biscuit as could be seen from the inventory of the goods. ITC action was taken not for non-declaration but on the ground that the chain was in crude form and the locket contained a gold biscuit weighing 5 tolas of 999.9 purity. The order of the Assistant Collector further discloses gold bangles were allowed on TBRE. The TBRE form requires mentioning of gold jewellery. This has to be done according to the rules by the Customs Officers. Apparently the gold chain with the locket had not been entered because the Customs Officer found the gold chain to be in crude form and the gold biscuit was a bullion prohibited for import. The question for consideration is whether the authorities below were justified in not allowing re-export for the reasons stated in their orders. Section 77 of the Customs Act requires the owner of a baggage to make a declaration of the contents of the baggage for the purpose of clearing it. Section 80 provides that the baggage of a passenger contains any article which is dutiable or the import of which is prohibited and in respect of which true declaration has been made Under Section 77, the proper officer may at the request of the passenger detains such article for the purpose of being returned to him on his leaving India.
5. From the above provisions it is clear that if there had been true declaration in respect of goods which are dutiable or the import of which is prohibited the, detention of such article is permissible at the request of the passenger. This section does not specify the time at which this request should be made. According to Shri Senthivel's contention the request should be made immediately after arrival and at the time of declaration. Shri Senthivel had urged that if that was not the case there is every likelihood of a smuggler getting benefit of Section 80. I am not impressed with the argument of Shri Senthivel. The benefit contemplated Under Section 80 is confined to baggage items in respect of which true declaration has been made. In the case of a smuggler one cannot expect him to make a declaration much less a true declaration. The purpose behind Section 80 is to safeguard the interests of passengers who may not be aware of or well-versed with the customs laws of India. The important aspect is about the true declaration and not the request for detention. The request for detention could be made when the passenger is told that the same cannot be cleared for home consumption.
6. A question similar to the question involved in this appeal came up for consideration in Mohd. Bin Ahmed's case referred to above. After detailed consideration of the provisions of the Customs Act this Bench had held that Section 80 permits temporary detention of baggage at the request of the passenger which are dutiable or prohibited for import provided a true declaration had been made Under Section 77. The Bench had also considered the contention regarding the bonafide baggage and had observed the bonafide baggage comes into picture only for the purpose of claiming free allowance in terms of the baggage rules and not for the purpose of interpreting Section 80. From the order of the Appellate Collector in another case referred to above also indicate that the customs authorities were allowing re-export when they were satisfied about the bonafide even in the absence of a true declaration. Even if 1 were to accept the contention of the authorities below that the gold chain was in crude form the passenger will be entitled to the benefit of Section 80 since she had made a true declaration. I, therefore, allow this appeal; set aside the orders passed by the authorities below and direct that the appellant be allowed to re-export the confiscated gold chain and the locket.