ORDER 1. The Petitioner is aggrieved by proceedings initiated by the Directorate of Revenue Intelligence, that is, Respondent No.3 and an order dated 14th August, 2003 passed by the Additional Commissioner of Customs, I.G.I. Airport, New Delhi in pursuance of a show-cause notice dated 12th December, 2002 issued under Section 124 of the Customs Act, 1962 by Respondent No.3. 2. Even though the order is appealable, the Petitioner chose to file a writ petition in this Court challenging its correctness, since it is claimed by her that Respondent No.3 had no jurisdiction to issue the said show cause notice in the facts and circumstances of this case and the law, particularly the Baggage Rules, 1998 read with the circular bearing No. 72/1998-Cus. dated 24.9.1998. 3. Notice was issued in the writ petition some time in 2003 and since then the petition is pending. 4. The Petitioner is a person of Indian origin and is an Indonesian national. She is settled in England along with her husband and daughter. On 18th November, 2002 she and her husband came to India on British Airways flight No. BA 143 from London apparently to attend a wedding. At Delhi airport, the Petitioner was going through the Green Channel and was intercepted by the Customs officials, who asked her whether she had any dutiable items to declare, to which she replied in negative. Thereafter, it appears that she and her husband were detained and a personal search was carried out which indicated that even though she had seven pieces of checked in baggage, nothing incriminating was recovered from those baggages. She was also carrying two hand bags. Upon examination of those bags, it was revealed that the said bags contained 28 packages containing 44 items of jewellery which she had brought perhaps for wearing at the wedding. 5. Her husband was also carrying two baggages but no dutiable items were found in these two baggages. The Petitioner made a statement under Section 108 of the Customs Act which has been placed on record. In this statement, she admits that she had brought the jewellery belonging to her and that she was going through the green channel when she was intercepted. 6. On 19th November, 2002, the Petitioner was produced before the Additional Chief Metropolitan Magistrate and was remanded to judicial custody where she remained til126th November, 2002. 7. In this statement, she admits that she had brought the jewellery belonging to her and that she was going through the green channel when she was intercepted. 6. On 19th November, 2002, the Petitioner was produced before the Additional Chief Metropolitan Magistrate and was remanded to judicial custody where she remained til126th November, 2002. 7. On 12th December, 2002, the Petitioner was issued a show-cause notice by the Directorate of Revenue Intelligence in which it was alleged that she was trying to smuggle jewellery worth Rs. 1.27 crores (equivalent to 1,10,000/- UK Pound Sterling). The Petitioner was asked to show cause why the jewellery be not confiscated and penalty be not imposed upon her. 8. The Petitioner filed a reply to the show-cause notice denying the allegations. Thereafter, the matter went for adjudication where the Petitioner had the opportunity of cross-examining some of the witnesses produced on behalf of the Respondent. 9. After that, the impugned order was passed which is challenged in this writ petition. 10. It is submitted by learned Counsel for the Petitioner that his client is a wealthy person and could, in the normal course, afford the jewellery which is the subject matter of this writ petition. He submits that there is no question of smuggling jewellery by the Petitioner because it was her personal jewellery or jewellery belonging to her family and there was no intention to trying to dispose of the jewellery in India. He submitted that under the Baggage Rules framed under the provisions of the Customs Act, it was not required for the Petitioner to declare the jewellery which is her personal effects and that is why she did not do so. Personal jewellery can be imported and, therefore, there is no violation of any provision of the Customs Act. 11. Our attention has been drawn to the Baggage Rules, 1994. Under Rule 11 of these Rules, "personal effects" of a tourist are allowed to be imported temporarily free of duty. The expression "personal effects" has been defined in the explanation to Rule 11 and this reads as follows: "The expression "personal effects" means all clothing’s. and other articles, new or used, which a tourist may personally and reasonably require taking into account alt. the circumstances of his visit but excluding all merchandise imported for commercial purposes. " 12. The expression "personal effects" has been defined in the explanation to Rule 11 and this reads as follows: "The expression "personal effects" means all clothing’s. and other articles, new or used, which a tourist may personally and reasonably require taking into account alt. the circumstances of his visit but excluding all merchandise imported for commercial purposes. " 12. The Baggage Rules of 1994 were subsequently superseded by the Baggage Rules, 1998 and the relevant rule in this regard relating to tourists is Rule 7, which reads as under: "A tourist arriving in India shall be allowed clearance free of duty articles in his bona fide baggage to the extent mentioned in column (2) of Appendix E." 13. Appendix E insofar as it is relevant to tourists like the Petitioner who come from countries other than Pakistan, Nepal or Bhutan is as follows: (b) Tourists of foreign origin other than those of Nepalese origin coming from Nepal or of (i) used personal effect and travel souvenirs, if(a) these goods are for personal use of the tourist, and (b) these goods, other than those consumed during the slay in India, are re-exported when the tourist leaves India for a foreign destination (ii) articles upto a value of Rs. 4,000 for making gifts. 14. It is submitted by learned Counsel for the Petitioner that her jewellery were her personal effects and, therefore, its import did not violate any provisions of the Baggage Rules, 1998. He also drew our attention to a circular bearing No. 72/98-Cus, dated 24.9.1998. In this circular, in the opening para it is noted that "In the Estimates Committee (1994-95) of the 10th Lok Sabha, the Government had undertaken to review the Baggage Rules permitting the travellers to bring in Note Book Computers and other essential items so that harassment to the general passengers could be eliminated. The Committee has desired an expeditious review of the matter. Paragraphs 3 and 4 of this circular are of some importance and these read as under: . Bhutanese origin coming from Bhutan or of Pakistani origin coming from Pakistan. "3. The Baggage Rules, 1998 issued vide Notn. No. 30/98-Cus. (NT), dated 2.6.1998 has provided for import of duty free goods by tourists in Regulation 7 as contained in Appendix E of the said Rules. There is no definition for personal effects in the present Baggage Rules. Bhutanese origin coming from Bhutan or of Pakistani origin coming from Pakistan. "3. The Baggage Rules, 1998 issued vide Notn. No. 30/98-Cus. (NT), dated 2.6.1998 has provided for import of duty free goods by tourists in Regulation 7 as contained in Appendix E of the said Rules. There is no definition for personal effects in the present Baggage Rules. However, for the sake of uniformity it is considered necessary to reiterate that the personal effects would include the following goods- (i) Personal jewellery. (ii) One camera with film rolls not exceeding twenty. (iii) One video camera/camcorder with accessories and with video cassettes not exceeding twelve. (iv) One pair of binoculars. (v) One portable colour television (not exceeding 15 cms in size). (vi) One music system including compact disc player. (vii) One portable typewriter. (viii) One permabulator (ix) One tent and other camping equipment. (x) One computer (laptop/note book). (xi) One electronic diary. (xii) One portable wireless receiving set (transistor radio). (xiii) Professional equipments, instruments and apparatus of appliances including professional audio/video equipments. (xiv) Sports equipments such as one fishing outfit, one sporting fire arm with fifty cartridges, one non-powered bicycles, one canoe or ranges less than 51 metres long, one pair of skids, two tennis rackets, one golf set (14 pes. with a dozen of golf balls) . (xv) One cell phone. 4. It may kindly be noted that while Notn. No. 45/92 defined personal effects as articles both new or used and Rule 11 of Baggage Rules, 1994 allowed personal effects of tourists for dutyfree import, the Baggage Rules, 1998 allows only used personal effects of the tourists. It is not the intention of the Board to verify the newness of every product which a traveller brings so long as it is not prima facie new goods in their original packagins which can be disposed of off-hand." (Emphasis supplied) 15. On the basis of these provisions, learned Counsel for the d petitioner submitted that since the jewellery was "personal effects" and there was no requirement of declaring ones personal effects, the Petitioner had not committed any offence under the Customs Act. 16. Learned Counsel for the Petitioner has drawn our attention to the statement of the Petitioner to the effect that goods are valued at U.K. Pound Sterling 1,10,0007- which is equivalent to Rs. 1.27 crores. 16. Learned Counsel for the Petitioner has drawn our attention to the statement of the Petitioner to the effect that goods are valued at U.K. Pound Sterling 1,10,0007- which is equivalent to Rs. 1.27 crores. However, during the cross-examination of the witnesses produced on behalf of the customs authorities before the adjudicating authority, it was stated by the witnesses that the value of the goods would be about Rs. 25 lakh. In fact, one of the witnesses had also stated that the jewellery imported by the Petitioner is not imported in India for sale because such products are exported from India. Under the circumstances, the contention was that there could not be any question of smuggling these goods into India. 17. On the other hand, learned Counsel for the Respondent contended that the Petitioner had filed a form before she left England wherein she claimed refund of V AT which clearly indicates that she had the intention of not taking the goods back to England from where she had purchased them. In support of this, it has also been pointed out that the air-ticket that was purchased by the Petitioner indicates that she wanted to go back to England within a few days time, that is, on 25th November, 2002. He also drew our attention to the fact that some of the items were purchased by the Petitioner as recently as in October or November, 2002. 18. According to learned Counsel for the Respondent, the intention of the Petitioner was to smuggle the goods into India, perhaps for selling them in the open market. He also submitted that the writ petition is not maintainable because the statute provides a remedy and the Petitioner ought to have resorted to the statutory remedy available to her. 19. We are of the view that there is no substance in any of the contentions raised on behalf of the Respondent. Insofar as the issue of jurisdiction is concerned, we are of the view that after three years of the matter remaining pending in this Court with more than 25-30 hearing before different Benches, it would not be equitable to relegate the Petitioner to the statutory remedy. Moreover, learned Counsel for the Petitioner has raised a jurisdictional issue, namely, whether the Respondent Authorities in fact had the jurisdiction in law to issue a show-cause notice in the facts of this case. Moreover, learned Counsel for the Petitioner has raised a jurisdictional issue, namely, whether the Respondent Authorities in fact had the jurisdiction in law to issue a show-cause notice in the facts of this case. It is his contention that there was no reason for the Petitioner to declare the personal jewellery brought in by her since they were her personal effects. If this contention is found to be correct, it would follow that the Respondents did not exercise their jurisdiction in accordance with law and in fact had no jurisdiction to issue a show-cause notice. This jurisdictional issue can, of course, be gone into by us in exercise of powers under Article 226 of the Constitution and we do not think it appropriate to relegate the Petitioner to the statutory remedy. 20. Insofar as the question of the intention of the Petitioner to take back the jewellery to England is concerned, we do not think the air ticket sought to be relied upon by learned Counsel for the Respondent is of much consequence. The ticket, we find, was purchased by the Petitioner in April, 2002, that is, seven months before the date of departure. There could be a change in date by few days here and there particularly because it is a first class ticket and therefore that is of no consequence. Moreover, we cannot ignore the contention of the Petitioner to the effect that her parents are in Indonesia and she had plans of proceeding to Indonesia. She had stated that she had planned to purchase return air tickets from Delhi to Jakarta (Indonesia) /Singapore, as she had been doing so in the past, while in Delhi and she also produced evidence of her similar previous purchases before the Respondents. 21. Some of the jewellery items items purchased by the Petitioner were for her personal use and some were intended to be left with her parents in Indonesia. One of the items confiscated by the customs was a silver panther which was valued in U.K. Pound Sterling 9,460/- for which the Petitioner did not claim exemption from VAT because it was to be taken back to England by the Petitioner. To this extent, the conduct of the Petitioner appears to be consistent and bona fide. 22. One of the items confiscated by the customs was a silver panther which was valued in U.K. Pound Sterling 9,460/- for which the Petitioner did not claim exemption from VAT because it was to be taken back to England by the Petitioner. To this extent, the conduct of the Petitioner appears to be consistent and bona fide. 22. The overall circumstances show that even though she brought jewellery of a huge amount into the country, the Petitioner did not seem to have the intention to smuggle the jewellery into India and to sell it off. If jewelleries were to be sold in India, its cost was only about Rs. 25 lakh. It is not understood why a person should import jewellery of Rs. 1.27 crores and try to smuggle it in, only to sell it for Rs. 251akh. The benefit of doubt a must, therefore, go to the Petitioner. 23. We also find from the record that out of the 28 packages that were brought into the country by the Petitioner, as many as 11 items were used jewellery. In fact photographs have been filed on record and which were apparently placed before the adjudicating authority indicating that 11 items have been used by the Petitioner over the years. 24. Insofar as the question of the original packing of the goods is concerned, we do not think that much reliance can be placed by the Respondent. There is no doubt that the jewellery was very expensive. It is common knowledge that jewellery is a delicate item and is put in especially designed boxes so that it may not get damaged while in transit. If these expensive items are put in other boxes, it may cause loss due to breakage to the owner of the jewellery. Learned Counsel for the Petitioner gave us an example of a laptop computer which is packed in the original bag and continues to be retained in that bag all along. Since a laptop computer continues to be retained in the original bag, it does not mean that the tourist owner is going to sell that item in the black market or in the gray market in India. There can be some exceptions to this Rule. One has to look at the matter in a pragmatic way and one should appreciate that jewellery cannot be treated as other personal effects such as clothing, etc. There can be some exceptions to this Rule. One has to look at the matter in a pragmatic way and one should appreciate that jewellery cannot be treated as other personal effects such as clothing, etc. We have also considered another possible situation. What if the Petitioner had worn the jewellery that she was carrying with her in her hand baggage. Could the Respondents still have confiscated it? Could they have claimed that it was not her "personal effects" and that she had imported it to sell it in India? To our mind the answer has to be in the negative. This is because it could not be said that the jewellery was new goods packed "in their original packaging", much less to say that it could "be disposed of off-hand". The expression "new" connotes that which is not at all used. It does not include "like new". 25. The Board circular dated 24.9.1998 itself states 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 quiet 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. What it conveys is that the personal effects which are in their original sealed Jacking, as they would be when bought off the shelf, which have not even been opened/unpacked (because that is what can confirm their newness and can therefore be disposed of as such, without even opening the packaging, that is, "off-hand", may prima facie be presumed not to constitute a personal effect of the tourist. 26. In the present case, it is not the case of the Respondents that the jewellery of the Petitioner was in such a packed/sealed state, whereby it could be concluded with certainty that they were new, and which could be disposed of off-hand. 27. Even otherwise, even if the new personal effects are in the "original packing and which can be disposed of off-hand", it merely raises a presumption that the personal effects have been brought in with a view to dispose them of in India. Such a presumption would be rebuttable. 27. Even otherwise, even if the new personal effects are in the "original packing and which can be disposed of off-hand", it merely raises a presumption that the personal effects have been brought in with a view to dispose them of in India. Such a presumption would be rebuttable. In this case, we have no hesitation in concluding that the said presumption, firstly could not be raised on the facts of this case, and in any event stood rebutted by the facts we have discussed hereinabove. 28. In this context, we may also note that the admitted position is that 11 items were undoubtedly old and used by the Petitioner for which photographs have been produced by the Petitioner. Therefore, we are of the view that the Respondents have overstepped their jurisdiction and were over enthusiastic in trying to nail the Petitioner. We, therefore, think that learned Counsel for the Respondent is not right in his contention that since the Petitioner had brought her jewellery in the original boxes, it was intended to be smuggled by her into India for sale. 29. In view of the fact that we find that Petitioner has not violated any of the provisions of the Baggage Rules, 1998, there is no question of confiscation of the goods under Section 111(d) or Section 111(1) of the Customs Act. 30. Under the circumstances, we quash the show-cause notice dated 12th December, 2002 and the Order-in-original dated 14th August, 2003 passed by Respondent No.3 and allow this Petition. 31. The Petitioner is entitled to costs of Rs. 5,000/-. 32. The confiscated goods may be released to the Petitioner by the Respondent, if they are not otherwise required in any other proceedings. Dasti. Petition allowed.