Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH THURSDAY, THE 23RD DAY OF NOVEMBER 2023 / 2ND AGRAHAYANA, 1945 WP(C) NO. 33470 OF 2022 PETITIONER/S:
NIHALA NAZIR SIMI W/O HARSHAD SALIM, AGED 27 YEARS PILAVILA HOUSE, MANCHALLOOR, KUNDAYAM P.O, KOLLAM DISTRICT, PIN - 689695 BY ADVS.
T.R.VISHNU A.MOHAMMED SAVAD RESPONDENTS:
1 THE DEPUTY COMMISSIONER OF CUSTOMS AIR CUSTOMS, OFFICE OF THE DEPUTY COMMISSIONER OF CUSTOMS, THIRUVANANTHAPURAM, PIN - 695024 2 JOINT COMMISSIONER AIR CUSTOMS, OFFICE OF THE DEPUTY COMMISSIONER OF CUSTOMS, THIRUVANANTHAPURAM, PIN - 695024 3 SUPERINTENDENT OF CUSTOMS ADMINISTRATION, AIR CUSTOMS, OFFICE OF THE DEPUTY COMMISSIONER OF CUSTOMS, THIRUVANANTHAPURAM, PIN - 695024 BY ADVS.
A.K.PREETHA SHRI.SREELAL N.WARRIER, SC, GST INTELLIGENCE ( DIRECTORATE GENERAL -DGGI) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.33470 of 2022 2 JUDGMENT Dated this the 23rd day of November, 2023 The present writ petition has been filed by the petitioner who was initially settled in UAE with her family and now she lives in Qatar. The petitioner having an Indian passport bearing No.L1181585. On 14.07.2022, the petitioner has traveled from Sharjah to Kochi via Thiruvananthapurm in flight No.6E1402(A320), Indigo Airlines. While the petitioner was in transit from Thiruvananthapuram to Kochi in flight No.6E1402(ATR), the petitioner was intercepted by the officials of the respondents and she was made to weigh her ornaments which she was wearing for allegedly participating for her younger sister's marriage which was held on 17.07.2022 at Kollam. After taking weight of the ornament, the petitioner was asked to remit an amount of Rs.7,19,796/- towards 39% customs duty for carrying gold ornaments weighing 400gms along with her.
2.
It is said that since the petitioner have to attend the marriage of her sister, the petitioner paid the said
WP(C) No.33470 of 2022 3 amount of Rs.7,19,796/- under protest towards the customs duty for which challan No.124/22-23 dated 14.07.2022 was issued by the 3rd respondent. Under the notification issued exercising the powers conferred under Section 45 of the Customs Act, 1962 and Section 3(12) of the Customs Tariff Act, 1975, notification No.50/2017-customs dated 30.06.2017, the custom Duty at 10% is liable to be paid on import of gold below the quantity of 10kg gold which may be carried by eligible passenger at the time of his/her arrival in India. The explanation of the said notification defines eligible passenger as passenger of Indian origin or passenger holding valid passport issued under the Passport Act, who is coming to India after a period of not less than 6 months of the 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 and such passenger has not availed of the exemption under this notification or under the notification being superseded at any time of such short visits. Vide Notification No.26/2016-Customs dated 31.03.2016, the customs duty for any article the value of
WP(C) No.33470 of 2022 4 which exceeds the duty free allowance admissible to such passenger or member under the Baggage Rules, 2016, prescribed is 35% ad valorem.
3.
As per the case of the respondents, the petitioner was not eligible passenger as the petitioner arrived in India on 14.07.2022 and had stayed 27 days in India from 26.12.2021 to 21.01.2022 and 9 days from 10.06.2022 to 18.06.2022 and hence the total stay during the last 6 months exceed the permissible limit of 30 days and therefore, it was said that the petitioner’s baggage duty covered under the Baggage Rules, 2016.
4.
The case of the petitioner is that, the petitioner was infected with Covid 19 positive on 07.01.2022 shewas supposed to return on 10.01.2022. Due to the Covid positive result, the travel was postponed to 12.01.2022 from Kochi to Sharjah but when she arrived at the Kochi International Airport with negative RTPCR report from the lab, the result in rapid PCR dated 12.01.2023 at the Airport turned positive and the petitioner was not approved for boarding in the flight. It is submitted that because of this reason the petitioner overstayed for 6 days in the last six
WP(C) No.33470 of 2022 5 months. It is further submitted that due to unfortunate circumstances and because of the spread of Covid 19 pandemic, the petitioner overstayed for six days in six months for which the petitioner has been termed as not eligible passenger attract in the customs duty at the rate of 10% but customs duty at the rate of 35% with other cess total amounting to 38.5%.
5.
The fact regarding the petitioner being returned from the Airport on 12.01.2022 is not disputed in the counter affidavit. This was the difficult period when the Covid 19 pandemic was spread out not only in India but most part of the world. Because of her being tested positive at the Airport for Covid 19, she will not allowed to board the flight which she had board to Sharjah from the Kochi International Airport on 12.01.2022 and she had finally could board the flight only on 21.01.2022 from the Kochi International Airport to Sharjah.
6.
Considering the aforesaid fact, I am of the opinion that for the reasons stated in the writ petition, the petitioner cannot be meant to be a not eligible passenger under the notification. The petitioner has to be treated as
WP(C) No.33470 of 2022 6 eligible passenger for which she could have been levied 10% customs duty besides the cess etc. Thus, the present writ petition is allowed. The respondents are directed to refund the excess duty collected from the petitioner within period of one month from today without interest.
With the aforesaid direction, the writ petition stands finally disposed of.
Sd/- DINESH KUMAR SINGH JUDGE AP
WP(C) No.33470 of 2022 7 APPENDIX OF WP(C) 33470/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE RELEVANT PAGES OF PASSPORT BEARING NO.L1181585 Exhibit P2 TRUE COPY OF THE RELEVANT PAGES OF PASSPORT SHOWING THE RESIDENCE VISA OF THE PETITIONER Exhibit P3 TRUE COPY OF THE AIR TICKET ISSUED TO THE PETITIONER ISSUED BY THE INDIGO AIRLINES DATED 14.07.2022 Exhibit P4 TRUE COPY OF THE CHALLAN NO.124/22-23 DATED 14.07.2022 ISSUED BY THE 3RD RESPONDENT Exhibit P5 TRUE COPY OF THE COVID POSSITIVE RESULT OF RAPID PCR DATED 12.01.2022 ISSUED BY THE AIRPORT Exhibit P6 TRUE COPY OF THE COVID POSITIVE RESULT OF RAPID PCR DATED 15.01.2022 ISSUED BY THE AIRPORT Exhibit P7 TRUE COPY OF THE AIR TICKET DATED 21.01.2022 SHOWING THE RETURN DATE OF JOURNEY Exhibit P8 TRUE COPY OF THE AIR TICKET DATED 10.06.2022 SHOWING THE DATE OF JOURNEY TO KANNUR Exhibit P9 TRUE COPY OF THE RETURN TICKET DATED 18.06.2022 TRAVELLING FROM JAIPUR TO SHARJAH Exhibit P10 TRUE COPY OF THE LAWYER'S NOTICE DATED 27.09.2022 SUBMITTED BEFORE THE 1ST RESPONDENT