Delhi High Court
Nurgozel Achilova vs Commissioner Of Customs on 7 August, 2025
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~56
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 7th August 2025
+ W.P.(C) 10952/2025
NURGOZEL ACHILOVA .....Petitioner
Through: Ms. Richa Kumari, Mr. Pawan, Mr.
Prashant Chaudhary, Ms. Arti Gupta
and Mr. Aman A., Advs.
versus
COMMISSIONER OF CUSTOMS .....Respondent
Through: Mr. Atul Tripathi, SSC, CBIC Adv.
with Mr. Gaurav Mani Tripathi & Mr.
Shubham Mishra, Advs.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE SHAIL JAIN
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through hybrid mode.
2. The present petition has been filed by the Petitioner- Nurgozel
Achilova under Article 226 of the Constitution of India, inter alia, seeking
release of one gold chain weighing 132 grams, and one gold bracelet,
weighing 66 grams, (hereinafter, ‘gold items’) of the Petitioner seized by the
Customs Department vide detention receipt dated 16th July, 2024.
3. The case of the Petitioner who is a senior citizen and is suffering from
impaired vision, is that she is a foreign national and belongs to Turkmenistan.
The Petitioner is present in person in Court today.
4. It is submitted on behalf of the Petitioner that she had travelled to India
for medical treatment on 16th July, 2024. Upon arrival at the Indira Gandhi
International Airport, New Delhi, the Petitioner was intercepted by the
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concerned Customs officials and the said gold items were detained by the
Customs Department.
5. After the appraisal of the gold items, the Order-in-Original was
passed by the Customs Department on 26th September 2024. The operative
part of the said Order-in-Original reads as under:
“ORDER
(i) I deny the ‘Free Allowance’ if any admissible
to the passenger Ms Nurgozel Achilova 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 declare the passenger, Ms Nurgozel
Achilova as “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 One copper
finished gold chain having average purity 989
with gross weight 132 grams having Assessable
value Rs,8,92,927/- recovered from the Pax under
Section 111(d), 111(i), 111(j) & 111(m) of the
Customs Act, 1962;
(iv) I order confiscation of One gold bracelet
having average purity 586 with gross weight 66
grams having Assessable value Rs.2,64,538/-
recovered from the Pax under Section 111(d),
111(j) & 111(m) of the Customs Act, 1962
(v) I give an option to redeem the goods
confiscated above i.e. One gold bracelet having
average purity 586 with gross weight 66 grams
having Assessable value Rs.2,64,538/- on payment
of a fine of Rs.37,000/- (Rupees Thirty seven
thousand only) under Section 125 of Customs Act,
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1962 and allow the same for re-export from India
only by the Pax since the passenger is a
Turkmenistan national. The redemption is to be
allowed after the completion of legal formalities in
this regard and also fullilment of any regulatory
clearances/ approvals required. The offer of
redemption, if accepted, shall be subject to
condition that the Pax shall not dispute the identity
and valuation of the detained goods. The offer of
redemption shall cease after ‘One Hundred Twenty
Days’ from date of the receipt of this order;
(vi) I also impose a penalty of Rs.1,20,000/-
(Rupees One lakh twenty thousand only) on the
passenger Ms Nurgozel Achilova under Section
112 (a) & 112 (b) of the Customs Act, 1962.
6. Thereafter, an appeal was filed by the Petitioner against the said Order-
in-Original. However, the appeal was rejected vide the Order-in-Appeal dated
30th June, 2025.
7. In effect, therefore, the Order-in-Original 26th September 2024 was to
be given effect to, as per which, the gold chain of the Petitioner has been
absolutely confiscated and the gold bracelet of the Petitioner was permitted to
be redeemed on payment of a fine of Rs. 37,000/-.
8. Ld. Counsel for the Petitioner submits that the said bracelet has since
been redeemed by the Petitioner by paying fine to the tune of Rs. 37,000/- and
penalty to the tune of Rs. 1,20,000/- in accordance with the Order-in-Original.
However, the gold chain of the Petitioner continues to remain confiscated with
the Customs Department.
9. On the last date of hearing, submission was made on behalf of the
Respondent that the Petitioner had waived the Show Cause Notice and the
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personal hearing. Hence, the same was not issued and the Order-in-Original
was passed.
10. On the other hand, ld. Counsel for the Petitioner submits that the gold
chain is her personal effect and thus, the continued detention of the same is
contrary to the principles of law.
11. Heard. Photographs of the Petitioner wearing the gold chain in the past,
along with her family, have been placed on record, which would show that the
same is her used personal effect. The Petitioner is in fact an eligible passenger
in terms of Baggage Rules, 2016 as well. Moreover, she suffers from impaired
vision and had travelled to India for medical treatment.
12. In terms of Rule 2(vi) read with Rule 3 of the Baggage Rules, 2016
(hereinafter, the “the 2016 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:
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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.
* * * *
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.”
13. 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
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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 the 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
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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 when 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.”
14. This Court in Mr Makhinder Chopra vs. Commissioner Of Customs
New Delhi, 2025:DHC:1162-DB, had the occasion to consider the relevant
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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.”
15. At this stage it would be relevant to consider the decision of the Madras
High Court in Thanushika vs. The Principal Commissioner of Customs
(Chennai), W.P. No. 5005/2024 (decided on 31st January, 2025) wherein the
High Court was dealing with a case where the gold jewellery of a Sri Lankan
tourist was seized by the Customs Department. The High Court after
analysing various provisions of the Act and the Rules held that the said Rules
would only apply to baggage and would not extend to any article “carried on
the person” as mentioned in Rule 3 of the Rule. This Court in Makhinder
Chopra (supra) having considered the above decision, observed as under:
“19. Thus, it is now settled law that the Customs
Officials are required to consider the facts of each case
and apply their mind before detaining the goods of a
tourist, either of Indian or foreign origin. The Customs
Officials have to be conscious of the fact that personal
effects including jewellery of tourists are protected by
the law from detention and same cannot be detained in
a mechanical manner.”
16. 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
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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
requiring 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.”
17. 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:
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“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.”
18. Thus, it is now settled that used jewellery worn by the passenger,
especially a foreign visitor, would fall within the ambit of personal effects in
terms of the Rules, which would be exempt from detention by the Customs
Department.
19. Additionally, the order-in-original in this case does not give any reason as
to why the gold bracelet has been permitted to be redeemed but the gold chain
has been absolutely confiscated. The same is completely illogical, inasmuch as
the same logic would apply both for the bracelet and for the gold chain. The
gold chain is weighing 132 grams and the bracelet is weighing 66 grams, the
Petitioner was permitted to redeem the same. The detained jewellery being
personal effects of the Petitioner, the detention of the same itself would be
contrary to law.
20. It is further 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
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(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 accordingly 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”
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21. 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 an 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
cannot be sustained in law. Accordingly, the Customs
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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.
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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.”
22. 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 requirement of Section 124 of the Customs 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.
23. Accordingly, in the facts of this case, since no show cause notice has
been issued to the Petitioner due to a pre-printed waiver, the gold chain would
be liable to be released to the Petitioner.
24. Mr. Tripathi, ld. Counsel for the Department also submits that in terms
of Section 129 DD of the Customs Act, the Petitioner has a remedy to approach
the Revisional Authority against the Order-in-Appeal.
25. In the opinion of this Court, considering that the Order-in-Original dated
26th September 2024, sought to make a completely baseless distinction between
two different gold items, which are both the personal effects of the Petitioner
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and given the peculiar facts of this case, where the Petitioner is a senior citizen,
who has travelled to India for medical treatment, the present writ petition has
been entertained.
26. Accordingly, the Petitioner shall collect her gold chain, either in person
or through an Authorised Representative, in which case, the detained goods
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.
27. The Petitioner being a foreign national, is willing to re-export the gold
chain. Thus, the same is directed to be released in favour of the Petitioner, for
re-export, subject to payment of 50% of the warehouse charges. Since the
Indian Visa of the Petitioner is stated to be expiring by the end of August 2025,
she shall visit the Customs Department on 13th August 2025, at 11:30 A.M. for
the release of her gold chain.
28. Accordingly, the petition stands disposed of. Pending applications, if
any, are also disposed of.
PRATHIBA M. SINGH
JUDGE
SHAIL JAIN
JUDGE
AUGUST 7, 2025/pd/ss
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