Hans Raj vs Union Of India And Ors.
1990 Latest Caselaw 403 Del

JUDGMENT

R.N. Pyne, J.

(1) Rule D.B.

(2) The matter is heard today with the consent of both the parties.

(3) The petitioner, Shri Hans Raj, .who was an attaches and Private Secretary to Ambassador of India in Japan in the Embassy of India of Tokyo from 1985 to 1988, came back to India finally on 27th July, 1988, after more than three years. During his stay in Japan, he purchased a portable Honda' Generator and a Music System. On having returned to India,on 28th October, 1988, the petitioner claimed Transfer of Residence concession under Transfer of Residence Rules, 1978, and for that purpose vide Annexure P/i,. be gave a declaration in respect of personally household effects including Music System and portable Generator which arc mentioned at item Nos. 9 and 13 respectively. Both these items were disallowed by the Assistant Collector of Customs for the purpose of exemption from custom duty on the ground that the items, on appearance, found to be in absolutely brand new condition and further, although the 'capacity of the generator has not been mentioned but on appearance it looks to be non-household type. The Collector of Customs (Appeals), before whom the appeal was filed by the petitioner against the order of the Assistant Collector .of Customs, confirmed the view taken.by the Assistant Collector and rejected the appeal vide his order dated 16th June,' 1989. In revision, however, before the Government of India, t

(4) However, in respect of the portable Generator the. finding of the authority below w again re-affirmed and the benefit of the Transfer of Residence Rules was disallowed. The reasons given by the Joint Secretary for disallowing benefit to the petitioner under Transfer of Residence Rules, 1978 in respect of the generator are as follows: GOVERNMENT have carefully considered the 'facts of the case and the submissions made by the petitioner. Government observed that the petitioner cams from Japan where a domestic generator is normally required. In order to decide as to whether an item is a household hem and could have been used as such, the living conditions of the country of import thereof have to be taken into consideration In this case the petitioner has himself stated that he was, using the generator only during picnic times. Government, therefore, are of the view that the same cannot be taken to have been used as a household item and decline to .extend Tr benefit, and agree with the findings of the authorities below'.

(5) The petitioner has challenged the order of the revisional authority dated 16th February,1990 disallowing T.R. benefit in respect of the generator in this writ petition and has prayed for the issuance of a -writ of certiorari for Cashing the same and also for the issuance of a writ of mandamus directing the respondents to grant Transfer of Residence concession in respect of portable Honda Generator.

(6) The petitioner has placed on record a document, Annexure P/2, whereby the Atc Trading Corporation Import & Export Division Ii vide their letter dated June 2, 1987, confirmed to the petitioner that they have received a bank cheque amounting to J U 70.000 for covering I unit Honda Portable Generator, Model Em 1400 X-.R. In other words, it is a clear testimony that on June 2. 1987, one unit Honda Portable Generator was purchased by the petitioner, from that Corporation.. The first Secretary & Head of Chancery,Embassy of lndia Tokyo, Japan, vide her letter dated July 17, 1987 (Annexure P/3) has further 'confirmed that 'he petitioner has acquired Honda Portable Generator, the date of purchase of which is 19th June, 1987. There is a definite averment in para 2 of the petition, that the respondents are not disputing the genuineness of purchase receipt of the portable Honda generator. This averment has not been challenged in the counter affidavit nor any dispute has been raised about the genuineness or authenticity of the aforementioned document.

(7) Learned counsel for the petitioner has vehemently contended that the findings of the revisional authority, that the petitioner cannot be given benefit of Transfer of Residence Rules in respect of the portable Generator being brand new and not being a household item, are wholly incorrect and cannot be sustained both in law and on facts.

(8) On the other hand, learned counsel .for the respondents has tried to support the findings of the revisional authority. It is further submitted by the counsel for the respondents that inasmuch as the examination of the generator has revealed that it is brand new and has not been subjected to any use it cannot be said to have been in the possession of the petitioner for one year and hence he is not entitled to the benefit of Transfer of Residence Rules.

(9) We have carefully considered the rival contentions of the parties and are of the opinion that the approach of the revisional authority has been wholly erroneous in the eyes of law which has resulted in the manifest injustice to the petitioner and such a finding, therefore, deserves to be set aside.

(10) As already mentioned, both the documents, namely the confirmation receipt of Act Trading Corporation dated June 2, 1987 and the First Secretary's letter dated 17th July 1987 intimating the acquisition of the Honda Portable Generator by the petitioner clearly demonstrate that the Honda Portable Generator was purchased by the petitioner on June 19, 1987 and that the petitioner returned to. India on July 27, 1988 i.e. after more than one year. In other words, Honda Portable Generator, after having been purchased by the petitioner, continued to be in possession of the petitioner and it was in use for more than a year. These facts have not been disputed in the returned nor these facts had been considered by the revisional authority or the authorities below. Since these documents have neither been disbelieved nor considered by the authorities-concerned, they raise a presumption that the Honda Portable Generator was in possession and use of the Petitioner for more than a year and merely because it looks a brand new cannot rebut such a presumption A person who maintains and keeps the condition of the article in a good rate cannot be penalised for keeping it in such a condition. In a similar situation when a Transfer of Residence benefit was not given to a person on the ground of new look, although the parchase vouchers were not disputed, this Court had the occasion to pass the following observations in the context which equally apply to the present case as well as in Jiwa Singh v. Union of India and another . 'As the petitioner's possession of the V.C.R. for a minimum period is prima fade 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.'

(11) In view of the above, the contention of the 'respondents' counsel to the effect that since the Honda Portable Generator looks brand new and that it has not been in use for more than a year by the petitioner, is unsustainable both on facts and in law and is, therefore, rejected.

(12) THE'NEXT contention raised by the learned counsel for the respondents is that the generator cannot be a "household effect" and as such if cannot be exempted from duty under the Transfer of Residence Rules. . The' petitioner himself has stated that it was purchased by him in Japan and was used by him for picnic purposes only. We are unable to accept this contention. In order to determine whether or not the generator falls within the category of "household effects" it is necessary to find out a¯ to what "household effects" means. As, per Stroud's Judicial Dictionary-'Vol. 2-- This (Household) word is frequently used in bequests as a qualifying adjective, e.g. "household"-furniture; goods; stuff; effects; property. Of these, household furniture and household goods and household stuff are synonymous. Either phrase will include all personal chattels that may contribute to the use or convenience of the householder or the ornament of the house. "House-hold effects" will comprise all that household "furniture", "goods", or "staff" would carry.

(13) Having regard to the said definition it can be safely said that the Portable Generator is also a household item/effect as it contributes to the use or,convenience of the householder. Further ft may be noticed that the Transfer of Residence Rules, 1978 were enacted under Section 79 of the Customs Act 1972. In the said Act and the Rules framed there under a distinction has been made between "baggage" and "bona fide baggage". Such a distinction becomes apparent from perusal of Sections 77 to 80 of the Customs Act. Section 79 talks of bona fide baggage which is exempt from customs duty and in respect of bonafide baggage the proper officer has been empowered to pass free of duty any article which is in the baggage of a passenger and which has been in his use for a prescribed minimum period or it is for his use or is a bonafide gift or souvenir. It cannot be disputed that "baggage" also includes "household effects".

(14) In this case, as already held, the Portable Generator was in use for more than a year and the petitioner had come back from Japan after more than three years and satisfied all other conditions as provided under the Rules for getting benefits under the provisions of Transfer of Residence Rules, 1978. Therefore, it appears to us that the Portable Generator is a bona fide baggage household item .Further, on perusal .of the Explanation to Rule 2 and Rule 3 of the Transfer of Residence Rules, 1978 it becomes clear that the Generator is not excluded for the purpose of exemption from duty under the Transfer of Residence Rules.

(15) Moreover, the Generator in the present case is a portable Generator and was purchased by the. petitioner for personal use. Even if it is assumed that it was used by him only for picnic purposes, it did not case to be of his personal use and an item of daily necessity of life. Ordinarily, the portable Generator cannot be used for merchandise or commercial purpose. Further, there arc various items of goods, viz., big thermos food carrier, battery operated lights which are occasionally used during picnic, camping etc. but are not used daily, in our view, do not cease to be item of household effect.

(16) Furthermore, from Annexure P/6 we find that even the Collector of Customs (Appeals) in some cases has treated the generator as a "household effect" and allowed exemption from duty. The department itself is not sure whether or not the Generator is a household effect. Since there is a doubt the applicability of Transfer of Residence Rules to the item of Generator being a household effect, the benefit should normally go to the petitioner in such cases, more particularly when the generator, in the present case. is a portable and cannot be ordinarily used for merchandise or commercial purpose.

(17) Having regard to the above said circumstances it is not unreasonable to hold that the portable generator is covered under "household effect" under Rule 2 and Section 79 of the Customs Act and that the petitioner is entitled to the benefit under the Transfer of Residence Rules.

(18) In the light of the above discussions, the writ petition is allowed, the order of the revisional authority dated 16th February. 1990 is quashed and it is directed that respondent No. 2 should release the Honda Portable Generator to the petitioner forthwith giving him the benefit of Transfer of Residence without payment of demurrage. The petitioner will also be entitled to his costs. Counsel's fee Rs. 1.000.00 .