Jiwa Singh vs Union Of India And Anr.
1989 Latest Caselaw 480 Del

JUDGMENT

R.N. Pyne, C.J.

(1) The petitioner came to India on September 4, 1988 after two years' of stay abroad. He brought with him household personal effects which included one C.T.R. 2092 Sony 20" and a National V.C.R. G-130. The petitioner claimed benefit of Transfer of Residence Rules in respect of all the above items including C.T.V. and V.C.R. on the ground he had been personally using the same for more than one year. The petitioner also filed a purchase vouch her dated 23rd June, 1987 in respect of T.V. and V.C.R. The Assistant Collector of (Air Customs) inspected ail the said items. He granted concession under Transfer of Residence Rules (hereinafter referred to as 'T.R.Å Rules') in respect of all items including C.T.V. set but rejected the petitioner's claim in respect of V.C.R. on the ground that it was new and less than one year old.

(2) The petitioner filed an appeal to the Collector of Customs (Appeals) against the order of the Assistant Collector rejecting T.R. claim in respect of V.C.R. In the appeal it has argued on behalf of the petitioner that the purchase voucher dated June 23, 1987 was genuine and the above model of V.C.R. was available in the market for the last three years. The Collector of Customs (Appeals) rejected the appeal by his order dated September 29. 1988 observing that the petitioner's plea that the said V.C R. of the said model was available three years ago was not backed by any evidence and that the V.C.R. was found to be brand new. He further observed that when Baggage Officer allowed the T.R. claim in respect of C.T.V. which was found to be used, there was no reason to doubt his finding tt the V.C.R. was brand new.

(3) The petitioner filed a revision application against the order of Collector of Customs (Appeals). It was argued on behalf of the petitioner before the Revisional Authority that the invoice dated June 23. 1987 was genuine and it covered two items viz. the V.C.R. and the C.T.V. and whereas C.T.V. was allowed to be cleared under T.R. Rules, the V.C.R. was not allowed. Further the said model of the V.C.R. was available in the market for the last three years. The Revisional Authority by his order dated December, 26, 1988 rejected the revision application observing as follows ;- Government have carefully gone through the records and the written as well as oral submissions made by the petitioner. Government observe that T.R. benefit in respect of one V.C.R. has been denied to the petitioner on the ground that the same was found to be brand new and the said model was launched only a few months back. The petitioner has not produced any evidence to disprove the said findings of the lower authorities except the invoice mentioned supra. Nor the petitioner has produced any evidence to substantiate his averment that the said model was available in the market three years back. In the result. Government find no sufficient grounds warranting interference with the order of the appellate authority."

(4) In this writ petition the petitioner has challenged the said orders dated September 29, 1988 and December 26, 1988. In the petition the said two orders have been challenged on the ground as taken before the Appellate Collector and the Revisional Authority.

(5) In the counter-affidavit filed on behalf of the respondents it is stated that the V.C.R. on examination by the respondent authorities was found to be brand new without any sign of use. Moreover it was further found that subject model was launched in the market by the manufacturers only few months back. Petitioner failed to produce any evidence to substantiate his contention that the V.C.R. in question was in use and was in possession of the petitioner for a minimum period of one year before the same was brought into India.

(6) The appellate authority and the revisional authority have denied benefit of T.R. Rules in respect of V.C.R. on the grounds that (j) it was found to be brand new; (ii) the V.C.R. of the said model was launched only a few months back; and (iii) the petitioner had not produced any evidence to substantiate his averment that the said model was available in the market three years back.

(7) It is true that the petitioner did not produce any evidence other than the voucher in support of his averment that the V.C.R. of the said model was available in the market three years back. But it should be noticed that there was no evidence before the authorities to come to the conclusion that the V.C.R. of the said model was launched only a few months back, Hence no time can be fixed as to when the V.C.R. of the said model became available in the market. The finding of the two authorities that the V.C.R. of the said model was launched only a few months back, not being based on any evidence, cannot be accepted.

(8) In support of his possession of V.C.R. turn one year as required by Rule 2(6) of the Transfer of Residence Rules, 1978, the petitioner produced the purchase voucher dated June 23. 1987. The impugned orders do not that the authorities concerned have considered the voucher atall. They have not disbelieved the voucher. The purchase voucher raises a presumption of the petitioner's possession for the required period. When there is prime evidence of possession of the article for the required period, the petitioner cannot be denied T.R. concession on the basis of mainly its look. It would be paradoxical if a careful owner who keeps his property in very good conditions is penalised vis-a-vis a careless person who treats his property roughly or an unscrupulous person who deliberately imprints 'signs of use' on his (perhaps new) articles. Rejection of T.R. benefit on the ground that the article looks new' cannot be sustained without valid reasons and in the absence of non-consideration of the purchase voucher. As the petitioner's possession of the V.CR. for the minimum period is prima facie established by the purchase voucher, which has neither been disbelieved nor rejected, the use thereof for the minimum period as required by T.R. Rules is established and he cannot be denied the benefit of T.R. concession. Therefore in our view, the two orders are vitiated and should be set aside.

(9) For all the reasons aforesaid, the petition succeeds. Rule nisi is made absolute. The impugned orders are set aside. The respondents are directed to forthwith release the V.C.R. after giving benefit of T.R. concession to the petitioner. There will be no order as to costs.