JUDGMENT
S. Muralidhar, J.
Page 3495
1. This writ petition, filed on 30.5.1981, seeks the quashing of an order dated 20.1.1981 passed by the Government of India, Ministry of Finance, Department of Revenue, as modified by subsequent order dated 16.2.1981, in a Customs Revision Application filed by the petitioner to the extent it rejects her plea for exemption from payment of customs duty on 9 items of goods under the Transfer of Residence Rules, 1978.
2. Rule was issued in this petition at the first hearing on 4.8.1981. Thereafter it was listed only on 28.2.2002 when it was adjourned. At the hearing on 6.1.2006 the following order was passed:
WP.(C) No. 1507/1981
Mr. Salwan appears for petitioner. He points out that counsel for UOI has not appeared to file a counter affidavit. In the circumstances, we direct Mr. Sidharth Mridul Standing counsel for the Government of India to accept notice for the respondents and to file a counter affidavit. Mr. Salwan shall furnish to Mr. Mridul an additional set of papers within Page 3496 two weeks. Counter affidavit shall thereafter be filed by Mr. Mridul within six weeks. Rejoinder, if any within four weeks thereafter. Post the writ petition for hearing on 24th April, 2006. Court notice issued under the orders of Registrar shall stand recalled.
Thereafter when the matter was listed on 24.4.2006 no one appeared for the respondent and no affidavit was filed. The matter was again listed before us on 12.10.2006. No counter affidavit was yet filed and Ms. Monika Garg, learned Counsel for the Respondent submitted that she had no instructions in the matter. Since the matter has been pending for over 25 years, we were not inclined to grant any further time to the Respondents and finally heard the writ petition.
3. The facts in brief are that the petitioner is a journalist by profession and married to a surgeon. She lived with her husband and child in the U.S.A from 1970 to September 1979. The petitioner came on transfer of residence from the U.S.A. to India in July 1980. She brought along with her 33 articles which, according to her, were of household use. It was her case that articles in question were in her possession for more than a year prior to her transfer to India and that in terms of the Transfer of Residence Rules, 1978 (‘Rules’) she should be permitted to import these goods without payment of customs duty.
4. The Assistant Collector Customs by his order dated 1.11.1980 allowed certain articles the benefit of the Rules on the ground that they were “found to be not altogether bereft of signs of use.” However, a similar benefit was disallowed to certain other items as ” they were found to be new and show no signs of use.” The petitioner then preferred an appeal which was rejected by the Appellate Collector by an order dated 26.11.1980. Thereafter the petitioner preferred a revision application before the Central Government under Section 131 of the Customs Act, 1962 (‘Act’). By the impugned order dated 20.1.1981, the Central Government extended the benefit of the Rules to certain further articles but denied the benefit to nine items listed at serial Nos. 24 to 32 on the ground that “these look new.” It was further stated that “Government consider that ordinarily these items, particularly the refrigerator and air conditioner and cooking range, would leave some signs of use and could not, after use, retain the same newness and shine which is observed in their case.” The said nine items to which the benefit has been denied are:
24. Bicycle
25. Bike-seat
26. Refrigerator G.E. Double door
27. Air conditioners-4
28. Cooking range
29. CalHood Outside Duc
30. Large hot trays
31. Video Recorder J.V.C.
32. Transformer
5. We may at the outset notice Rule 2(d) of the Rules provides that personal and household effects shall be exempted from duty:
Page 3497
If such person affirms by a declaration that the goods have been in his/her or his family’s possession and use abroad for a minimum period of one year and the examination of the goods and the attendant circumstances do not indicate to the contrary.
It is not in dispute that in the present case the petitioner did affirm a declaration to the above effect. In order to be satisfied that “upon examination of the goods and the attendant circumstances” the affirmation made by the petitioner is not contraindicated, the benefit of the Rules must be extended. In other words, once the declaration is made the burden shifts to the Department to show that the condition of the goods is such that they have not been in the possession or use of the applicant abroad for a minimum period of one year prior to such import.
6. In the present case the petitioner categorically states that she had purchased these goods in May/June, 1979 from an established business house in New York. She has further averred that she imported these goods into India at the time of transfer of residence in July 1980 and the goods arrived in Delhi in October 1980. Therefore, the condition that the goods should have been in possession and use of the petitioner abroad for more than a year prior to their import in terms of Rule 2(c) above stands satisfied. Significantly, the extent of use is not indicated in the Rule. In this regard, the petitioner has averred in the writ petition that these goods were installed at the petitioner’s house in Lido Beach, Long Island, New York. It is also averred that the petitioner’s family also maintained a town house/apartment in New York near the hospital where petitioner’s husband was a surgeon. It is then explained in para 8(d) as under:
(d) However about the same time one of the petitioner’s children had to be put under the care of Institute for Development of Human Potentials in Philadelphia specializing in the treatment of brain injured children. This was because the child had suffered a brain injury which disabled her, losing all the limb movements apart from the loss of speech and hearing. With the petitioner’s husband working in New York City and the petitioner running hither and thither as the needs of her child demanded, the family life was considerably upset and established routines undermined. In consequence the articles in question came to be in active use sparingly and sporadically. That sparing and sporadic use does not disentitle the goods from duty free or concessional importation under the rules is also not in dispute.
7. It cannot therefore be said on a reading of the above explanation, which has not been controverter, that the items were not in possession and use of the petitioner since May/June 1979. The explanation for why the goods although in use perhaps looked new, appears perfectly plausible. Unfortunately, the impugned order totally fails to deal with this explanation. In the circumstances, we are of the view that the conclusion reached in the impugned order that upon examination of these articles they “look new” is neither a categorical contravention of the facts asserted by the petitioner nor a satisfactory compliance with the requirement of Rule 2(c). In the absence of the Central Government coming to a positive conclusion that the goods were not in fact in the possession and use of the petitioner for one year Page 3498 preceding the date of import, the benefit of Rule 2(c) could not have been denied.
8. For these reasons we are of the view that impugned order dated 20.1.1981 passed by the Government of India, to the extent that it denies the benefit of the Rules to the aforementioned 9 articles imported by the petitioner upon transfer of residence cannot be sustained in law and is hereby accordingly set aside.
9. Now for the consequential relief. The petitioner states in the writ petition that after the impugned order was received by her, she cleared the goods on 13.3.1981 upon payment of the duty amount of Rs 89,600 under protest. She has prayed for the refund of the said amount. Considering the long number of years for which the Respondent has had this amount with it without the authority of law, we think it to be in the interests of justice to require the respondent to refund the said amount of Rs. 89,600 to the petitioner together with litigation costs of Rs. 10,000. The payment shall be made within a period of 8 weeks from today and in any event not later than December 15, 2006.
10. With the above directions, the writ petition is allowed.