Delhi High Court
Mubina vs Commissioner Of Customs on 8 July, 2025
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~55
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 8th July, 2025
+ W.P.(C) 9269/2025
MUBINA .....Petitioner
Through: Dr. Ashutosh & Ms. Fatima, Advs.
versus
COMMISSIONER OF CUSTOMS .....Respondent
Through: Mr. Akshay Amritanshu, Sr. Standing
Counsel with Ms. Drishti Saraf & Mr.
Sarthak Srivastava Advs.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE RAJNEESH KUMAR GUPTA
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through hybrid mode.
2. The present petition has been filed by the Petitioner under Articles 226
and 227 of the Constitution of India, inter alia, seeking release of the two gold
bangles weighing 117 grams (hereinafter, ‘detained jewellery’), seized by the
Customs Department vide Detention Receipt dated 20th September, 2023.
3. The case of the Petitioner is that she was travelling from Jeddah to India
on 20th September, 2023 after completing her pilgrimage/Umrah at Mecca.
Upon her arrival at the Indira Gandhi International Airport, New Delhi, after
she crossed the Green Channel, a search was conducted on her person as also
her baggage and the jewellery which she was wearing, were seized by the
Customs Department.
4. Thereafter, the detained jewellery was apprised in the presence of the
advocate of the Petitioner and the total value of the bangles was appraised at
Rs. 6,94,715.58/-.
5. It is the case of the Petitioner that no show cause notice had been issued
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with respect to the detained jewellery and no opportunity for personal hearing
was granted to the Petitioner.
6. Thereafter, an Order in Original dated 18th January, 2024 was passed,
directing absolute confiscation of the detained jewellery of the Petitioner in
the following terms:
“I. I deny the ‘Free Allowance’ if any, admissible to the Pax
Mubina for not declaring the detained goods to the Proper
Officer at Red Channel as well to the Customs Officer at Green
Channel who intercepted her and recovered the detained goods
from her;
II. I hold the passenger, Mubina an “ineligible Passenger” for
the purpose of the Notification No. 50/2017-Cus dated
30.06.2017 (as amended) read with Baggage Rules, 2016 (as
amended);
III. I order absolute confiscation of the above said “Two gold
bangles having purity 999, total weighing 117.00 valued at Rs.
6,94,715.58/- ” recovered from the Pax Mubina and detained
vide DR No. DR/INDEL4/20.09.2023/002669 Dated
20.09.2023 under section 111(d), 111(i),111() and 111(m) of
the Customs Act, 1962;
IV. I also impose a penalty of Rs.70,000/- (Rupees Seventy
Thousand Only) on the Pax Mubina under Section 112(a) and
112(a) of the Customs Act, 1962.”
7. The Petitioner then challenged the Order-in-Original in appeal and the
following Order-in-Appeal dated 26th May, 2025 was passed:
Order
6.0 In light of discussions and findings as above, I allow the appeal
partially against OIO No. 1158/002669/20.09.2023/WH/2023-24
dated 18-01-2024 passed by the Assistant Commissioner of
Customs, T-3, IGI Airport, New Delhi and impugned goods i.e. ”
Two gold bangles having purity 999, total weight 117 grams,
valued at Rs.6,94,715.58″ is allowed to be released to theSignature Not Verified
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appellant/authorized person on payment of redemption fine of
Rs.70,000/- (Rupees Seventy Thousand only) under Section 125
of the Customs Act, 1962 along with applicable Customs Duty.
The penalty of Rs.70,000/- (Rupees Seventy Thousand only)
imposed on the appellant under Section 112(a) & 112(b) of the
Customs Act, 1962 is upheld. The Appeal is disposed off with such
modifications and consequential relief as above.
8. Ld. Counsel for the Petitioner submits that the detained jewellery is the
personal effects of the Petitioner and the same could not have been seized or
detained by the Customs Department. He relies on the decision in Manan
Karan Sharma v. Commissioner of Customs in W.P.(C) 6707/2025 which
was passed under similar circumstances and thus, seeks for release of the
detained jewellery of the Petitioner.
9. Mr. Akshay Amritanshu, ld. Counsel for the Respondent, on the other
hand, submits that the Petitioner herself had filed the appeal against the Order
in Original dated 18th January, 2024 and the consequent Order-in-Appeal
dated 26th May, 2025 is quite reasonable in nature, as it has imposed only Rs.
70,000/- as penalty and Rs. 70,000/- as redemption fine along with the
applicable customs duty. Thus, the same shall not be set aside.
10. The Court has heard the parties and has considered the matter. The
Petitioner was on a religious pilgrimage to Mecca and was on her way back
when the detained jewellery was seized. It is normal practice and part of our
culture, at least in our country, that women wear basic jewellery such as
bangles as part of their personal effects. The same could not have been
detained by the Customs Department only on the basis that the same were
of 24 carat gold, unless any other special circumstances exist for such
detention.
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11. It is noted that no show cause notice has been issued in this case as the
Customs Department is relying on the standard pre-printed waiver that was
obtained from the Petitioner. The validity of such pre-printed waiver of SCN
and personal hearing has been considered by this Court in various matters,
including in Amit Kumar v. The Commissioner of Customs, 2025:DHC:751-
DB and Mr Makhinder Chopra vs Commissioner of Customs New Delhi,
2025:DHC:1162-DB. The operative portion of the judgement in Amit Kumar
(supra) is as under:
“16. A perusal of Section 124 of the Act along with the alleged
waiver which is relied upon would show that the oral SCN cannot
be deemed to have been served in this manner as is being alleged
by the Department. If an oral SCN waiver has to be agreed to by
the person concerned, the same ought to be in the form of a proper
declaration, consciously signed by the person concerned. Even
then, an opportunity of hearing ought to be afforded, inasmuch as,
the person concerned cannot be condemned unheard in these
matters. Printed waivers of this nature would fundamentally
violate rights of persons who are affected. Natural justice is not
merely lip-service. It has to be given effect and complied with in
letter and spirit.
17. The three-pronged waiver which the form contains is not even
decipherable or comprehensible to the common man. Apart from
agreeing as per the said form that the oral SCN has been served,
the person affected has also waived a right for personal hearing.
Such a form in fact shocks the conscience of the Court, that too in
cases of the present nature where travellers/tourists are made to
run from pillar to post for seeking release of detained goods.
xxxx
19. This Court is of the opinion that the printed waiver of SCN and
the printed statement made in the request for release of goods
cannot be considered or deemed to be an oral SCN, in compliance
with Section 124. The SCN in the present case is accordinglySignature Not Verified
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deemed to have not been issued and thus the detention itself would
be contrary to law. The order passed in original without issuance
of SCN and without hearing the Petitioner, is not sustainable in
law. The Order-in-Original dated 29th November, 2024 is
accordingly set-aside”
12. Further, this Court in Makhinder Chopra (supra) had analysed Section
124 of the Customs Act, 1962 (hereinafter “the Act”) while considering the
issue of waiver of show cause notice and personal hearing. The Court while
replying on the decision in Amit Kumar (supra) held as under:
“23. As mentioned above, the Customs Department has relied
upon the undertaking in a standard form dated 17th June, 2024
signed by the Petitioner, wherein the Petitioner has waived of
issuance of the show cause notice and personal hearing. It is
admitted position that no show cause notice has been issued to the
Petitioner on the basis of the said undertaking.
24. The issuance of a show cause notice before confiscation of
goods by the Customs officials is covered under Section 124 of the
Act, which reads as under: ”
“124. Issue of show cause notice before confiscation of
goods, etc.– No order confiscating any goods or
imposing any penalty on any person shall be made under
this Chapter unless the owner of the goods or such
person–
(a) is given a notice in writing with the prior approval of
the officer of Customs not below the rank of an Assistant
Commissioner of Customs, informing him of the grounds
on which it is proposed to confiscate the goods or to
impose a penalty;
(b) is given an opportunity of making a representation in
writing within such reasonable time as may be specified
in the notice against the grounds of confiscation or
imposition of penalty mentioned therein; and
(c) is given a reasonable opportunity of being heard in the
matter:
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Provided that the notice referred to in clause (a) and the
representation referred to in clause (b) may, at the request
of the person concerned be oral.
Provided further that notwithstanding issue of notice
under this section, the proper officer may issue a
supplementary notice under such circumstances and in
such manner as may be prescribed.”
25. A perusal of the above Section would show that the principles
of natural justice have to be followed by the Customs Department
before detention of the goods. The Section provides a three-fold
requirement:
i) a notice in writing informing the grounds of confiscation;
ii) An opportunity of making a representation in writing
against the said grounds of confiscation;
iii) A reasonable opportunity of personal hearing.
26. In terms of proviso to the said Section, the Customs
Authority may issue an oral show cause notice to the tourist
in lieu of a written show cause notice at the request of the
said tourist. However, in the opinion of the Court the
undertaking in a standard form as relied upon by the
Customs Department waiving the issuance of show cause
notice and personal hearing would not satisfy the
requirements of Section 124 of the Act.
27. This Court recently in Amit Kumar v. The Commissioner
of Customs, 2025:DHC:751 DB was considering similar
facts wherein the Petitioner had also signed an undertaking
waiving show cause notice and personal hearing. The Court
had analysed and discussed the validity of such undertaking
vis-à-vis Section 124 of the Act. […]
28 In view of the above observations, it is clear that the
undertaking signed by the Petitioner in the present case
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cannot be sustained in law. Accordingly, the Customs
Department has failed to satisfy the requirements of Section
124 of the Act in the present case. Therefore, the detention of
the Petitioner’s gold chain has to be set aside.
xxxx
34. Since, the Court has made clear that the practice of
making tourists sign undertaking in a standard form
waiving the show cause notice and personal hearing is
contrary to the provisions of Section 124 of the Act,
hereinafter, the Customs Department is directed to
discontinue the said practice. The Customs Department is
expected to follow the principles of natural justice in each
case where goods are confiscated in terms of Section 124 of
the Act.”
13. Thus, the law is well settled, that the Customs Department cannot rely
on pre-printed waiver of show cause notice as the same would be contrary to
the requirements of Section 124 of the Act. In light of the above discussion, it
is clear that the continued detention or seizure of goods by the Customs
Department would be untenable in law, where the show cause notice or the
personal hearing have been waived via a pre-printed waiver.
14. Once the goods are detained, it is mandatory to issue a Show Cause
Notice and afford a personal hearing to the Petitioner. The time prescribed
under Section 110 of Act, is a period of six months. However, subject to
complying with the requirements therein, a further extension for a period of
six months can be taken by the Customs Department for issuing the show
cause notice. In this case, the one year period itself has elapsed, yet no show
cause notice has been issued. Accordingly, the detention is impermissible.
15. Further, in so far as personal effects are concerned, in terms of Rule
2(vi) read with Rule 3 of the Baggage Rules, 2016 (hereinafter, the “the 2016
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Rules”) the Petitioner would be permitted clearance of articles, free of duty
in their bona fide baggage, including used personal effects. The relevant
provisions of the Rules are extracted hereunder:
“2(vi) “Personal effects” means things required for satisfying
daily necessities but does not include jewellery.
* * * *
3. 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, up to the
value of fifty thousand rupees if these are carried on the person or
in the accompanied baggage of the passenger:
Provided that a tourist of foreign origin, not being an infant, 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, up to the value of fifteen thousand rupees if these are
carried on the person or in the accompanied baggage of the
passenger:
Provided further that where the passenger is an infant, only used
personal effects shall be allowed duty free. Explanation.- The free
allowance of a passenger under this rule shall not be allowed to
pool with the free allowance of any other passenger.
* * * *
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5. Jewellery.- A passenger residing abroad for more than one
year, or return to India, shall be allowed clearance free of duty in
his bona fide baggage of jewellery upto a weight, of twenty grams
with a value cap of fifty thousands rupees if brought by a
gentleman passenger, or forty grams with a value cap of one lakh
rupees if brought by a 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 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.”
16. The issue whether gold jewellery worn by a passenger would fall within
the ambit of personal effects under the Rules, has now been settled by various
decisions of the Supreme Court as also this Court. The Supreme Court in the
Directorate of Revenue Intelligence and Ors. v. Pushpa Lekhumal Tolani,
[(2017) 16 SCC 93], while considering the relevant provisions of the Customs
Act, 1962 (hereinafter, the ‘Act’) read with the Baggage Rules, 1998, that
were in force during the relevant period, held that it 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 the
Act is concerned, we are of the opinion that the respondent herein
did not violate the provisions of Section 77 of the Act since theSignature Not Verified
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necessary declaration was made by the respondent while passing
through the green channel. Such declarations are deemed to be
implicit and devised with a view to facilitate expeditious and
smooth clearance of the passenger. Further, as per the
International Convention on the Simplification and
Harmonisation of Customs Procedures (Kyoto 18-5-1973), a
passenger going through the green channel is itself a declaration
that he has no dutiable or prohibited articles. Further, a
harmonious reading of Rule 7 of the Baggage Rules, 1998 read
with Appendix E (2) (quoted above), the respondent was not
carrying any dutiable goods because the goods were the bona
fide jewellery of the respondent for her personal use and was
intended to be taken out of India. Also, with regard to the
proximity of purchase of jewellery, all the jewellery was not
purchased a few days before the departure of the respondent from
UK, a large number of items had been in use for a long period. It
did not make any difference whether the jewellery is new or used.
There is also no relevance of the argument that since all the
jewellery is to be taken out of India, it was, therefore, deliberately
brought to India for taking it to Singapore. Foreign tourists are
allowed to bring into India jewellery even of substantial value
provided it is meant to be taken out of India with them and it is
a prerequisite at the time of making endorsements on the
passport. Therefore, bringing jewellery into India for taking it
out with the passenger is permissible and is not liable to any
import duty.
* * * *
15. […] Also, from the present facts and circumstances of the case,
it cannot be inferred that the jewellery was meant for import into
India on the basis of return ticket which was found to be in the
possession of the respondent. Moreover, we cannot ignore the
contention of the respondent that her parents at the relevant time
were in Indonesia and she had plans of proceeding to Indonesia.
Some of the jewellery items purchased by the respondent were
for her personal use and some were intended to be left with her
parents in Indonesia. The High Court has rightly held that whenSignature Not Verified
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she brought jewellery of a huge amount into the country, the
respondent did not seem to have the intention 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 per DRI. The High Court was
right in holding that it is not the intention of the Board to verify
the newness of every product which a traveller brings with him
as his personal effect. It is quite reasonable that a traveller may
make purchases of his personal effects before embarking on a
tour to India. It could be of any personal effect including
jewellery. Therefore, its newness is of no consequence. The
expression “new goods” in their original packing has to be
understood in a pragmatic way.”
17. In Saba Simran v. Union of India & Ors., 2024:DHC:9155-DB, the
Division Bench of this Court was seized with the issue of deciding the validity
of the seizure of gold jewellery by the Customs Department from an Indian
tourist. The relevant paragraphs of the said judgement are as under:
“15. The expression ‘jewellery’ as it appears in Rule 2(vi) would
thus have to be construed as inclusive of articles newly acquired
as opposed to used personal articles of jewellery which may have
been borne on the person while exiting the country or carried in
its baggage. Thus, personal jewellery which is not found to have
been acquired on an overseas trip and was always a used
personal effect of the passenger would not be subject to the
monetary prescriptions incorporated in Rules 3 and 4 of the 2016
Rules.
16. This clearly appeals to reason bearing in mind the
understanding of the respondents themselves and which was
explained and highlighted in the clarificatory Circular referred to
above. That Circular had come to be issued at a time when the
Appendices to the 1998 Rules had employed the phrase “used
personal effects, excluding jewellery”. The clarification is thus
liable to be appreciated in the aforesaid light and the statutory
position as enunciated by the respondents themselves requiringSignature Not Verified
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the customs officers to bear a distinction between “personal
jewellery” and the word “jewellery” when used on its own and as
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.”
18. The above mentioned decision of the Division Bench of this Court was
challenged before the Supreme Court in SLP(C) No. 011281 / 2025 titled
Union of India & Ors. v. Saba Simran. The Supreme Court, while dismissing
the said challenge, held as under:
“1. Delay condoned.
2. Having heard the learned counsel appearing for the petitioners
and having gone through the materials on record, we see no reason
to interfere with the impugned order passed by the High Court. 3.
The Special Leave Petition is, accordingly, dismissed. 4. Pending
application(s), if any, stands disposed of.”
19. This Court in Mr Makhinder Chopra vs. Commissioner Of Customs
New Delhi, 2025:DHC:1162-DB, had the occasion to consider the relevant
provisions of the Rules, as also the decisions of the Supreme Court and this
Court. After analysing the same, this Court held as under:
“17. A conspectus of the above decisions and provisions would
lead to the conclusion that jewellery that is bona fide in personal
use by the tourist would not be excluded from the ambit of personal
effects as defined under the Baggage Rules. Further, the
Department is required to make a distinction between ‘jewellery’
and ‘personal jewellery’ while considering seizure of items for
being in violation of the Baggage Rules.”
20. Thus, it is now settled that the used jewellery worn by the passenger
would fall within the ambit of personal effects in terms of the Rules, which
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would be exempt from detention by the Customs Department. In view of the
above and considering the facts of the case, it is clear that the detained
jewellery are the personal effects of the Petitioner. Accordingly, the detained
jewellery would be liable to be released.
21. Under such circumstances, the detention of the Petitioner’s jewellery is
not tenable. Accordingly, the said detention is set aside. The detained
jewellery shall be released to the Petitioner within a period of two weeks. The
Petitioner shall appear before the Customs Department on 21st July, 2025,
and may collect the detained jewellery through an Authorised Representative,
in which case, the detained jewellery shall be released after receiving a proper
email from the Petitioner or some form of communication that the Petitioner
has no objection to the same being released to the concerned Authorised
Representative. The Petitioner shall pay the warehousing charges.
22. If any amount has been paid by the Petitioner for filing of the appeal by
way of pre-deposit, the adjustment of the said amount shall be given qua the
warehousing charges and only the remaining amount shall be paid by the
Petitioner in the form of warehousing charges. The Order-in-Appeal and the
Order-in-Original are thus set aside.
23. Accordingly, the present writ petition is disposed of in above terms. All
the pending applications, if any, are also disposed of.
PRATHIBA M. SINGH
JUDGE
RAJNEESH KUMAR GUPTA
JUDGE
JULY 8, 2025/kp/MR/ss
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