Seizure of Gold at airports are common scenario so, what if you have a handy set of rules for preparing seizure Panchanama, issuance of SCN or even preparing brief facts for adjudication in such matters? Certain sections of the Customs Act, 1962, Baggage Rules 2016, Foreign Trade Policy, Foreign Trade (Development and Regulation) Act, 1992, CBEC circulars and Circulars by DGEP are invariably used for these cases. Here are some hand picked sections/ rules/ regulations you would mostly need quoting in seizure matters depending upon demand of facts and circumstances when you make seizures of Gold, gold dust, jewellery from possession of someone coming to India.
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i) In terms of paragraph 2.26 of the Foreign Trade Policy (2015-2020), formulated under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992, a passenger is allowed to import only bonafide household goods and personal effects as his bagga Under ITC (HS) heading sub code 9803 0000, import of all dutiable articles, imported by a passenger or a member of a crew in his baggage is restricted and their import is allowed only as per the provisions of Customs Baggage Rules and in accordance with saving clause 3(1)(h) of Foreign Trade (Exemption from application of Rules in Certain Cases) Order, 2017.
ii) As per para 2.05 of the Foreign Trade Policy no export or import shall be made by any person without an IEC number unless specifically exempted.
iii)In terms of Section 11 of the Foreign Trade (Development and Regulations) Act, 1992, no export or import shall be made by any person except in accordance with the provisions of the said Act, rules and orders made there under and the existing Foreign Trade policy for the time being in force.
iv) In terms of Section 2(23) of the Customs Act, 1962, “import” with its grammatical variations and cognate expression means bringing into India from a place outside India;
v)In terms of Section 2(33) of the Customs Act, 1962 if any goods are imported in violation of the conditions imposed for such importation, such goods shall be treated as “Prohibited goods”.
vi) As per Section 2 (39) of the Customs Act, 1962, “Smuggling” in relation to any goods, means any act or omission which will render such goods liable to confiscation under Section 111 or Section 113 of the Customs Act, 1962.
vii) As per Section 77 of the Customs Act, 1962; the owner of any baggage shall, for the purpose of clearing it, make a declaration of its contents to the proper Officer.
viii) In terms of Section 111(d) any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force, shall be liable to confiscation.
ix) In terms of Section 111 (l) of Customs Act, 1962, any dutiable or prohibited goods which are not included or in excess of those included in the declaration made under section 77 of Customs Act, 1962 are liable to confiscation.
x)In terms of Section 111(m) of Customs Act, 1962 any goods which do not correspond in respect of value or in any other particular with the entry made under this Act or in the case of baggage with the declaration made under Section 77 of the Customs Act 1962 shall be liable to confiscation.
xi) In terms of Section 112 (as amended) of the Customs Act, 1962, Any person, (a) Who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 111, or abets the doing or omission of such an act, or (b) Who acquires possession of or is in any way concerned in carrying, removing, depositing, harboring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111, shall be liable to penalty.
xii) Section 123 of Customs Act 1962, provides for ‘burden of proof’ in specified matters of import. The section reads as “123. Burden of proof in certain cases- (1) Where any goods to which this Section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be: (a) In a case where such seizure is made from the possession of any person, (i) On the person from whose possession the goods were seized; and (ii) If any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person; (b) in any other case, on the person, if any, who claims to be the owner of the goods so seized. (2) This section shall apply to gold [and manufactures thereof] watches, and any other class of goods which the Central Government may by notification in the Official Gazette, specify.”
xiii) In terms of Baggage Rules 2016 (as amended) framed under section 79 of the Customs Act 1962, gold or silver in any form other than ornaments mentioned in Annexure-I to the above rules does not constitute bonafide baggage and hence, cannot be imported under the Baggage Rules 1998 (as amended). Gold in any form including ornaments can be imported by a passenger only under notification No 50/2017- Customs dated 30.06.2017 (Sr. no. 356) issued under Section 25 of the Customs Act, 1962 on fulfilment of the conditions imposed therein. The conditions under which Gold can be imported are i) The duty shall be paid in convertible foreign currency, ii) the quantity of Gold imported in any form shall not exceed one kilogram per eligible passenger and iii) the Gold is either carried by the eligible passenger at the time of his arrival in India or is imported by him within fifteen days of his arrival in India. By virtue of Explanation contained therein “eligible passenger” means a passenger of Indian Origin or a passenger holding a valid passport under the Passports Act 1962 who is coming to India after a period of not less than six months of stay abroad and short visits, if any, made by the eligible passenger during the aforesaid period of six months shall be ignored if the total duration of stay on such visits does not exceed thirty days.
xiv) In terms of Circular No. 27/2016-Cus. issued by CBEC vide F.No. 484/31/2016 – LC dated 10.06.2016 read with Notification No.33/2015 -Customs dated 15.05.2015 issued vide F.No: DGEP/FTP/23/2014 EOU & G & J, import of gold is restricted and permitted to be imported only by the agencies notified by DGFT which are as follows:
(a)Metal and Minerals Trading Corporation Limited (MMTC);
(b)Handicraft and Handloom Export Corporation (HHEC);
(c)State Trading Corporation (STC);
(d) Project and Equipment Corporation of India Ltd. (PEC)
(e)STCL Ltd;
(f) MSTC Ltd;
(g) Diamond India Ltd. (DIL);
(h)Four Star Export House from Gems & Jewellery sector and Five Star Export House from any sector as may be recognized as nominated agencies by Regional Authority in terms of the Foreign Trade Policy; and
(i) any bank as authorized by Reserve Bank of India as Nominated Agency,
(xv)The import of gold by any other person or agencies other than the above mentioned thus, is restricted in terms of Circular No. 27/2016-Cus issued by CBEC vide F.No. 484/31/2016 – LC dated 10.06.2016 read with Notification No.33/2015-Customs dated 15.05.2015 issued vide F.No: DGEP/FTP/23/2014-EOU & G & J and the same are liable to be confiscated under the Customs Act, 1962.
XV) As per Rule 3 of the Baggage Rules, 2016, Passenger arriving from countries other than Nepal, Bhutan or Myanmar:-An Indian resident or a foreigner residing in India or a tourist of Indian origin, not being an infant arriving from any country other than Nepal, Bhutan or Myanmar, shall be allowed 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, upto the value of fifty thousand rupees if these are carried on the person or in the accompanied baggage of the passenger.
Explanation: The free allowance of a passenger under this rule shall not be allowed to pool with the free allowance of any other passenger.
ANNEXURE-I to the baggage rules, 2016. (See rule 3, 4 and 6) 1. Fire arms. 2. Cartridges of fire arms exceeding 50. 3. Cigarettes exceeding 100 sticks or cigars exceeding 25 or tobacco exceeding 125 gms. 4. Alcoholic liquor or wines in excess of two litres. 5. Gold or silver in any form other than ornaments. 6. Flat Panel (Liquid Crystal Display/Light-Emitting Diode/ Plasma) television.
Also Check:
Application of Customs Act and Allied Acts in Seizure of Currency (Export)