1. On 30-9-1981, Shri A. Abdul Gafoor a passenger landed in India at Madras (Meenambakam Airport). On suspicion, the Customs Officers at the Airport took over the examination of the baggage of the said passenger, marked earlier for 'B' counter (Red channel). Examination of the baggage resulted in the recovery of one brown paper packet from one of the pant pockets that was kept in the suit case. The brown paper packet, on examination, was found to contain gold jewellery weighing 385 gms. valued at Rs. 53.515/- cif. The articles of gold jewellery had not been declared to the counter or examining officers. Thereafter, the passenger Shri Abdul Gafoor was subjected to personal search before two independent witnesses. One Air Tag No. 12-12-96 was recovered from his pant pocket. Immediately, Shri Abdul Gafoor snatched that air-tag from the Customs Officer and tore it into three bits. The torn-out bits were recovered from Shri Abdul Gafoor and pasted together. When questioned, Shri Abdul Gafoor admitted that besides the red suit case and plastic hand bag, he booked yet another brown suit case when he boarded the plane at Singapore. The suit case bearing the claim Tag No. 12-12-96 was identified by Shri Abdul Gafoor among the other suit cases lying near the conveyor belt. The said brown colour suit case had two pad locks in addition to one extra lock. Shri Abdul Gafoor took out one bunch of keys from his leather hand bag and opened the extra lock. He could not produce the keys for the two pad-locks, as such, the same were broken open before the witnesses and Shri Abdul Gafoor. The suit case was then opened and examined. There were two black Echolac brief cases covered with 10 numbers Nylon Crocodile baniyans, the two brief cases were opened by Shri Abdul Gafoor which had number locking system.
From the brief case marked No. I for purpose of identification, 10 Nos.
of brown paper packets and another brief case marked as No. II, seven brown paper packets were recovered and on examination they were found to contain 500 Nos. of Tape recorder heads in each. In all there were 8500 Nos. of Tape Recorder heads valued at Rs. 42.000/- cif.
2. On detailed examination of the red suit case, one Photo album was found amongst the baggage goods. A close examination of the photo album, resulted in recovery of one gold pendent bearing foreign markings and one gold minor chain all weighing 30 gms. and valued at Rs. 4,170/- c.i.f. from inside the pouch of the album. The examination of the hand bag also resulted in recovery of documents viz. three air tickets, excess baggage ticket, some visiting cards, bills etc., serially marked 1 to 25 for the purpose of identification. As Shri Abdul Gafoor had no valid import licence to cover the importation of the 8500 numbers of Tape Recorder heads valued at Rs. 42.500/- c.i.f.
in the absence of Reserve Bank of Indian's permission in respect of importation of gold jewellery 415 gms. and valued at Rs. 57,685/- the same were seized under a mahazar for action under the Customs law. The baggage goods valued at Rs, 4.417/- c.i.f. inclusive of 10 Nos. of Crocodile Banians valued at Rs. 50/- c.i.f. were also seized for action under Customs law. The documents 25 Nos. were also seized for further investigation. Apart from the above, the old pant used for concealing the jewellery, two brief cases, photo album, the baggage claim Tag bearing No. 12-12-96 along with its counter foil were also seized under the Mahazar.
3. Statement was recorded from the applicant during the course of which he stated that he was approached by one Mohamed at Singapore to carry a suit case containing electronic goods for him. He was to receive Singapore $ 2000/- for carrying the suit case with him and handing over the baggage tag to some one who would call for the same after he had gone through the customs. Based on the recovery of the goods and the statement of the appellant and after taking into account a later explanation of his, disclaiming any connection with the bringing of the electronic goods contained in the brown suit case, the Additional Collector passed the Order No. OS 1025/ 81 RD, dated 14-9-1982 (Annexure B).
4. Against the above order, the applicant filed an appeal to this Tribunal which was dismissed by its Order No. CD (MAS) 192/83, dated 10th May, 1984 (Annexure A).
5. The applicant has filed an application under Section 130(1) of the Customs Act, 1962, seeking a reference to the Hon'ble High Court of judicature at Madras on the following questions said to be of law, arising from the order of the Tribunal. The Departmental Representative has opposed the application.
(1) Whether the applicant can be said to have imported contraband goods in the brown suit case when admittedly the baggage ticket for the same was in the name of another passenger Mohammed Rafi and the latter has not been examined or questioned with regard to the same (2) Can the applicant be said to have imported gold jewellery of 415 gms into India when they were seized even before the applicant could give a declaration or crossed the clearance line (3) Whether in the facts and circumstances of the case the applicant should not have given an opportunity to re-export the gold jewellery (4) Whether the denial of baggage allowance to the applicant is justified and the confiscation of the baggage goods valued at Rs. 4,417/- is justified (5) Whether the levy of penalty of Rs. 20.000/- on the applicant is legal and valid 6. We have heard the learned Counsel for the applicant as well as the representative of the Department. The learned Counsel for the applicant placed reliance on the ratio of the ruling of the Madras High Court reported in 1981 E.L.T. 153 (Mad.) in the case of K.R. Ahmed Shah v.Additional Collector of Customs, Madras and Ors., and contended that if a person makes a declaration of the goods, though not permitted to be imported under law, he would be well in his rights to claim the right of re-export in terms of Section 80 of the Customs Act, 1962. The ruling relied upon by the learned Counsel for the applicant deals with the scope and ambit of Sections 77 and 80 of the Customs Act and also the true meaning and connotation to be attributed to the word 'import' and 'export' respectively occurring in Section 2(23) and 2(18) of the Customs Act. Reference is also made to an unreported judgment of the Division Bench of the Madras High Court in W.A. No. 84/68 wherein it has been observed : "The word 'import' for purposes of the Act is denned as bringing into India from a place outside India. Smuggling is defined as any act or omission which will render such goods liable to confiscation under Section 111. In different contexts, the expressions 'import' and 'export' have been construed by courts with reference to the Customs frontiers of the Customs barriers. But of a question of import through aircraft, the question arises whether the moment the aircraft arrives in an international airport in the country, the goods are imported. On this question, we are inclined to share the view of the Delhi High Court in Union of India and Ors. v. Khalil Kacherim, 1970 Crl. L.J. 417. To take a different view would introduce confusion in the matter of levy of duty under the provisions of the Act. More so, as we think, in the case of goods in the hands of transit passengers. So long as they were not taken out of the clearance line in the customs office in the airport, they cannot be said to be imported within the meaning of the Act." 7. We are of the view that in the light of the observations contained in the ruling cited supra, in the context of the order of the Tribunal out of which the reference application has arisen, a question of law can be said to arise meriting reference to the High Court in respect of questions (I) to (3) referred to above which are inter-related.
8. So far as denial of baggage allowance and levy of penalty are concerned, they fall in the realm of the exercise of judicial discretion by a quasi-judicial authority in the facts and circumstances of each case and no question of law, as contended by the learned counsel for the applicant in this regard, would arise out of the order of the Tribunal meriting a reference.
9. We therefore formulate the following questions for reference under Section 130(1) of the Customs Act, 1962 to the Hon'ble High Court of Judicature, Madras: (1) Whether by mere declaration of import of a prohibited article like gold in terms of Section 77 of the Customs Act, 1962, a person would be entitled to claim re-export of the same in terms of Section 80 of the Customs Act, 1962 and if so, the true scope and meaning of Sections 77 and 80 of the Customs Act, 1962 vis-a-vis Section 111(d) of the Customs Act, 1962 in the facts and circumstances of the case.
(2) Whether in the facts and circumstances of the case the appellant could be said to have imported the package in question, and competent in law to make a declaration thereof to the authorities in terms of Sections 77 and 81 of the Customs Act, 1962.