J.S. Sydney vs Union of India

Pendse, J.—The short question which falls for determination in this petition filed under Article 226 of the Constitution of India is whether the authorities below were right in declining benefit of the Baggage (Condition) of Exemption Rules, 1975 to the petitioner. Only few facts are required to be stated to appreciate the grievance of the petitioner.

The petitioner is resident of Andhra Pradesh and proceeded to Kuwait to work as a Driver with effect from January 26,1980. The petitioner resided at Kuwait for a duration of 2 Years 4 months and 16 days continuously. It is the claim of the petitioner that during his stay, a colour T. V. and V. C. R. were purchased for personal use on January 4,1981 and in respect of which the petitioner holds a receipt executed by the vendor. The petitioner returned back to India and sought clearance of T. V. and V. C. R. in accordance with Rule 3 of the Baggage (Condition) of Exemption Rules. The rule, inter alia, provides that the personal and household effects of a person on a bona fide transfer of residence to India shall be exempted from payment of duty. The exemption was available provided :

(a) the person has resided abroad for minimum period of two years, and (b) the person makes a declaration that the goods have been in his or his family''s possession and used abroad for a minimum period of one year.

The Assistant Collector declined to grant relief to the petitioner and the appeal ended in dismissal by order dated June 30,1982 passed by Appellate Collector of Customs, Bombay. The petitioner carried a revision before the Customs, Excise & Gold Control Appellate Tribunal but the revision also was dismissed by order dated March 22,1983. The petitioner has filed the present petition to challenge the legality of the order.

The learned counsel appearing on behalf of the petitioner submitted that the revisional authority has recorded a clear-cut finding that the condition that the person must reside abroad for a minimum period of two years immediately preceding the transfer of residence was satisfied by the petitioner. The benefit of exemption under Rule 3 was denied only on the ground that attendant circumstances do not indicate that the imported goods have been with the petitioner or in his family''s possession and used abroad for a minimum period of one year. The learned counsel urges that this findings is entirely unsustainable and we find consideration merit in the submission. The petitioner produced bills duly issued by the vendor establishing purchase of T. V. and V. C. R. on January 4,1981. It is therefore, obvious that both the items were in possession of the petitioner for more than one year. We enquired from Shri Deodhar, learned counsel appearing on behalf of the Department as to what is the basis to conclude that the petitioner had not used the T. V. and V. C. R. during his stay at Kuwait and the learned counsel replied that the Assistant Collector so held only on visual inspection. It is difficult to appreciate how on visual inspection, it can be concluded that the items were not used. In our judgment, the benefit of exemption was erroneously denied to the petitioner and consequently the orders passed by the authorities below are required to be set aside.

Accordingly, petition succeeds and rule is made absolute in terms of prayers (a) and (b). The items should be handed over to the petitioner on compliance of necessary requirements but after giving benefit of the exemption. In the circumstances of the case, there will be no order as to costs.