1. The Revision application filed before the Govt. of India against the Order-in-Appeal No. S/49-899/80 P, dated 16-10-80 passed by the Appellate Collector of Customs, Bombay statutorily stood transferred to the Tribunal for being heard as an appeal.
2. The brief facts necessary for the disposal of this appeal may be stated as under : The appellant along with his wife and four minor children returned to India on 19-5-1980. All of them held Indian passports but were normal residents abroad. While returning they brought goods valued at Rs. 26795/- which consisted among other things a colour Video Cassette Recorder valued at Rs. 10,000/-, a colour T. V. set valued at Rs. 4,000/- and Video Cassette tapes (assorted) 26 in number valued at Rs. 6920/-. The Assistant Collector of Customs ordered absolute confiscation of the above three items on the ground that he does not consider the said items are for the bona fide use of the appellant or the members of his family. The reasons given by the Assistant Collector are that the appellant is a goldsmith by profession. He had studied upto VI standard and therefore illiterate. Suffice it to say at this stape the reasons assigned by the learned Assistant Collector can hardly be considered as valid reasons. The law nowhere lays down that only literates are permitted to bring items which were ordered to be confiscated by the 'earned Assistant Collector. Further, one fails to understand how the Assistant Collector could consider the appellant who had studied upto VI standard as illiterate. Similarly, the law no where prohibits a goldsmith from bringing them articles ordered to be confiscated. Baggage Rules do not prescribe educational or professional qualifications.
3. It may be stated here that the Assistant Collector did not record a finding that the goods were intended for sale or that they were in commercial quantity. Probably, the Assistant Collector could not have held one VCR and one TV as in commercial quantity. If the Assistant Collector had any doubt as to the financial capacity of the appellant to acquire the articles in question he should have in fairness to the appellant recorded his statement and questioned regarding the financial capacity. Such a course had not been adopted by the Assistant Collector. There is absolutely nothing on record to indicate that the appellant could not acquire the articles in question. As a matter of fact, the appellant was a goldsmith by profession and according to the evidence available on record that he stayed abroad along with his wife and children for nearly two years and he came to India on a short visit. If a person of Indian origin could stay abroad with his family for nearly two years it could be safely said that he would have had sufficient income abroad. Prima facie, the order of the Assistant Collector appears bad.
"I observe that the goods confiscated absolutely are in excess of appellant's free allowances. Further these are in excessive quantities. These were therefore correctly confiscated. Considering all the facts of the case, it is ordered that 1 Item No. 10, and 11 and two tapes of Item No. 12 be allowed clearance on payment of a fine Rs. 20,000/ (Rs twenty thousand only) in addition to duty payable. Subject to this modification, the appeal is otherwise rejected." It is thus seen, that the Appellate Collector justified confiscation not because of the reasons which prompted the Assistant Collector to order confiscation but on altogether different grounds.
5. During the hearing of this appeal Shri H. C. Tailor contended the order of confiscation of the three items passed by the Assistant Collector and confirmed by the Appellate Collector is wholly illegal.
He further contended that the Appellate Collector was totally unjustified in imposing a fine of Rs. 20,000/- and further confirming the absolute confiscation of remaining 24 cassettes. The Appellate Collector had not given any reason as to why he allowed two cassettes and not the remaining 24 cassettes. He further submitted that as per the P. N. No. 34-ITC (PN)/78, dated 16th May, 1978 each passenger was entitled to bring personal and household effects other than the items mentioned in paragraph 4 upto the value of Rs. 5,000/-. Therefore the appellant, his wife and four minor children would be entitled to bring articles of personal and household effects of the value of Rs. 20,000/-. Besides, they are entitled to free allowance under the Baggage Rules.
6. As regards the financial condition of the appellant, Shri Tailor contended that the appellant along with his three brothers are having a jewellery shop and there they earn handsome income ranging from 30 to 40 lakhs per year in Dubai. Shri Tailor further contended that the appellant had stated before the Assistant Collector that the items were meant for their own use. There was no evidence to the contra. He therefore prayed that the order of absolute confiscation of 24 cassette tapes and the order of confiscation of TV Set, Video cassette recorder and two tapes and the imposition of fine of Rs. 20,000/- in lieu of confiscation may be set aside and there may be an order to release the goods on payment of appropriate duty after allowing admissible ITC allowance.
7. Shri Krishan Kumar for the Respondent Collector however submitted that the P. N. 34-ITC(PN)/78, dated 16th May, 1978 did not permit import of television set and therefore the order of confiscation of television set was valid. Shri Krishan Kumar further submitted that the Appellate Collector was justified in holding that the goods brought are in excessive quantities.
8. Considering the submissions made on both sides, I have already held that the order passed by the Assistant Collector appears bad because none of the reasons given by him are valid reasons. In any case the order passed by the Assistant Collector gets merged with the order of the Appellate Collector. In the eye of law it does not exist independently. As such the question of considering its validity strictly does not arise. I shall, therefore consider the correctness or otherwise of the order passed by the Appellate Collector.
9. I have already set out the operative portion of the order passed by the Appellate Collector. He had assigned two reasons in support of his order. Firstly, that goods confiscated absolutely are in excess of the Appellant's free allowance and secondly they are in excessive quantities. As has been stated earlier, the appellant came to India for a short visit along with his wife and four minor children. So all of them shall have to be treated as tourists of Indian origin. Under the Public Notice referred to above which is admittedly applicable to the appellant and the members of his family a tourist of Indian origin, whether holding an Indian passport or a foreign passport, who is normally resident abroad, may be allowed to import, without an import licence, but on payment of customs duty, in convertible foreign currency, items of personal or household effects except fire arm, television set, lair-conditioner, refrigerator and deep freeze, for presentation as gifts or souvenirs to friends and relatives, upto a value of Rs. 5000/- and subject to the proviso (a) of sub-para 3(1) of the Notification. The said proviso is not relevant for the purpose of this case as the items concerned in this appeal are not the items specified in that sub-para. Paragraph 6 of the above Public Notice reads : "The above concessions may be allowed provided the proper officer of the Customs is satisfied that the items are being imported for bona fide use of the passenger or his family or for making a gift or souvenir, as the case may be, and subject to the condition that they shall not be sold, displayed in a shop until : (a) in the case of fire arms and TV sets, they have been used for a period not less than five years from the date of clearance by such persons, or passenger or member of the crew, or (b) in the case of other goods when the market price is depreciated to less than 50% on their market price when new." 10. Thus, it is seen that a tourist of Indian origin could import as baggage items of personal and household effects upto a value of Rs. 5000/- but if those items include small articles like perfumes, cosmetics, synthetics or blended fabrics or garments then the value of those articles should not exceed Rs. 500/-. Paragraph 6 of the said Public Notice authorises the Proper officer of the Customs to allow the concession if he is satisfied that the items are being imported for bona fide use of the passenger or his family or for making a gift or souvenir but subject to the condition that they shall not be sold, displayed, advertised or offered for sale or displayed in a shop until in the case of fire arms and TV Sets, they have been used for a period of not less than five years from the date of clearance and (2) in the case of other goods when the market price is depreciated to less than 50% of their market price when new.
11. Under the Public Notice referred to above, a passenger is not permitted to import TV Sets even if it is for his own use or his family's or for making a gift or souvenir. There is no embargo for the import of the remaining two items. The value of the remaining two items comes to Rs. 16920/-. The Appellate Collector had used the expression that the goods confiscated absolutely are in excess of appellant's free allowance. It is not clear what exactly the Appellant Collector meant by stating that the goods are in excess of the appellant's free allowance. Apparently the Appellate Collector had in mind the Baggage Rules which permitted free allowance of Rs. 1000/- per passenger and Rs. 250/- per minor at the relevant time. As a matter of fact the appellant and the members of his family were allowed free allowance of Rs. 3000/- which works out to Rs. 1000/- each for two adults and Rs. 250/- for the remaining four minors. But in so far as P. N. No. 34/78, dated 16th May, 1978 is concerned the major passenger and minor passenger are not treated differently. Each is entitled to import articles of personal and household effects upto a value of Rs. 5000/- subject to the conditions laid down therein. The appellant, his wife and four minor children could individually bring personal and household effects of the value of Rs. 5000/-. Thus the total values would come to Rs. 30,000/-. The value of all the articles brought by the appellant and the members of his family is only Rs. 26,795/- which is less than Rs. 30,000/-. It is nowhere stated either in the order of the Assistant Collector or in the order of the Appellate Collector that the goods valued at Rs. 26795/- was found in the baggage of the appellant alone.
If the appellant, his wife and four minor children were to arrive on different dates each would have been entitled to import items of the value of Rs. 5000/- and just because they all came together or pooled their baggage, the Customs authorities cannot deny the benefit of the Public Notice. It was.however open to the Customs to treat the baggage of each passenger separately. If once they allow pooling them it would not be open to the Customs to deny the benefit of the Public Notice. It may be mentioned here that the Assistant Collector had treated the appellant and the members of his family differently for the purpose of giving free allowance. When that is so, the Appellate Collector was not justified in taking a view that the items brought are in excessive quantities. His finding is vague. In any case, the Appellate Collector did not hold that the items were not for the use of the appellant or the members of his family or for making gifts to friends and relatives.
Though there may be some justification for the Appellate Collector to order confiscation of the TV Set as it could not have been imported even under the Public Notice there was absolutely no justification to order confiscation or to impose fine in lieu of confiscation of other items. I, therefore, set aside the order of confiscation of VCR as well as video cassette tapes (assorted). Since I set aside the order of confiscation of the above two items, question of setting aside the fine in lieu of confiscation does not arise because it cannot exist independently. However, the confiscation of the TV Set valued at Rs. 4000/- is confirmed but the same is allowed to be redeemed on payment of a fine of Rs. 4000/-. In the result, this appeal is allowed in part.
The confiscation of items 10 and 12 namely video cassette recorder and video cassette tapes (assorted) and the fine in lieu of confiscation of the said items are set aside. They shall be released to the appellant on payment of duty.
12. The confiscation of TV set is confirmed but the appellant is allowed redemption on payment of fine of Rs. 4000/- in lieu of confiscation. The appellant and the members of his family shall be granted admissible ITC allowances taking into consideration the allowance already granted in respect of other items which were ordered to be cleared by the Assistant Collector.