The judgment establishes that the import of goods may require a license under the relevant provisions of the Foreign Trade (Development and regulation) Act, 1992, and exemptions under other rules or regulations may not override this requirement.

P. Shanmugam, J.

Petitioner challenges the adjudication order of the Deputy Commissioner of Customs as confirmed by the appellate order of the Commissioner of Customs (Appeals) and the order in revision by the Government of India. By the adjudication order the import of Water Scooter was confiscated and allowed to be redeemed on payment of a fine of Rs. 3,75,000/-and a penalty of Rs. 50,000/-. The said order was confirmed with a modification reducing the redemption fine to Rs. 3 lakhs by the appellate authority and the revisional authority while upholding the redemption fine reducing the personal penalty to Rs. 40,000/-. The Original Petition is against this order.

2. Learned Standing Counsel appearing on behalf of the Department raised a preliminary contention on the maintainability of the writ petition under Art.226 of the Constitution of India. In support of his objection he has referred to the judgment in Indo-China Steam Navigation Co. v. Jasjit Singh (AIR 1964 SC 1140) wherein the Supreme Court held that the question as to the propriety of the fine imposed has been examined by the appellate and the revisional authorities. In such a case, they cannot be heard to complain against the impugned order of fine in an appeal under Art.136, when no question of principle or law is involved. The authorities constituted under the Customs Act was acting under the relevant provisions of the said Act as the constitution of Tribunals under Art.136 of the Constitution because they are invested with the judicial power of the State and are required to act judicially. Therefore, the writ petition under Art.226oftheConstitutionofIndiais not maintainable. Since the legal questions as to the applicability of relevant rules are raised and argued, the Original Petition is maintainable.

3. The petitioner has brought one Water Scooter model "Yamaha W.C.T. 1100 U 1100 Triple" valued at Rs. 3.75 lakhs as unaccompanied baggage on his claim of transfer of residence concession in terms of Baggage Rules, 1994. The only question that arises for consideration is whether this import requires licence under S.3(3) of the Foreign Trade (Development and regulation) Act, 1992. The case of the petitioner is that since it was brought under transfer of residence he is entitled for exemption.

4. S.3 of Foreign Trade (Development and regulation) Act empowers the Government to make provision for prohibiting, restricting or otherwise regulating the import or export of goods. Paragraph 156-j(2) of the Exim Policy issued under S.3 of the said Act restricts the import of the ships, trawlers, boats and other water transport crafts. These items are not permitted to be imported except permitted by a licence. Therefore, there is a clear prohibition against the import of the Water Scooter which is a water transport craft without a licence. The contention on behalf of the petitioner is that Baggage Rules, 1994 framed under S.79 of the Customs Act exempt from duty of personal and household effects. The said exemption will not apply in the case of certain articles like "vessels". The argument is that since there is no exemption from duty they can import it and clear it on payment duty. I am unable to draw such a conclusion. R.16 of the Baggage Rules is as follows:

"Exemption from duty on personal and household effects:- The personal and household effects of a person on bona fide transfer of residence to India, shall be exempted from duty:

Provided that -

(a) no such exemption shall apply in respect of articles specified in Appendices A and B to these Rules; and

(b) the articles have been in his or his family's possession and use abroad for a minimum period of one year.

Explanation-For the purpose of this rule, the expression "personal and house hold effects" shall not include jewellery of which the value is mainly on account of gold content, as is in excess of the value often thousand rupees in case of male passenger and twenty thousand rupees in the case off a-male passenger