1986 (10) TMI 238 - AT - Customs

Summary

Issues:
- Refusal to grant transfer of residence facility
- Shortfall in stay abroad and short visits during the stay
- Interpretation of Transfer of Residence Rules
- Exercise of discretion by lower authorities
- Eligibility for Transfer of Residence concession

Analysis:
- The appellant was aggrieved by the refusal to grant her transfer of residence facility due to not meeting the minimum stay requirement of 2 years as per Rule 2(a) of the Transfer of Residence Rules, 1978. Additionally, the appellant had taken a short visit to India exceeding the condonable period of 6 months as per Rule 5. The goods declared by the appellant were examined, and discrepancies were found, including an imported TV set that did not show signs of use.

- The advocate for the appellant argued that the short visits exceeding 6 months should be condoned if sufficient cause is shown, invoking the mandatory requirement of the main rule. He also highlighted the appellant's return to India under special circumstances of advanced pregnancy and medical history. The advocate contended that the TV set should be allowed under Transfer of Residence Rules since it was purchased with a VCR that was deemed to have signs of use.

- The respondent raised a preliminary point of law, asserting that the power to condone shortfalls in stay and visits during the stay rested with the lower authorities' discretion. The respondent cited a case to support the discretionary nature of such decisions. It was argued that the appellant did not meet the minimum 2-year stay requirement and that the reasons for the shortfall were not compelling. The continuous short visits to India were also deemed non-condonable.

- The Tribunal considered the arguments presented by both sides. It was noted that the appellant did not fulfill the minimum stay requirement of 2 years as per Rule 2(a) and failed to satisfy the conditions for condonation under Rule 6 due to reasons unrelated to work termination or vacation. The appellant's reasons for the shortfall in stay abroad were not considered sufficient under the Transfer of Residence Rules. Therefore, the refusal to grant transfer of residence facility was upheld, and the appeal was rejected. The Tribunal clarified that the exercise of discretion by the lower authorities could be reviewed by the Tribunal in quasi-judicial orders like the present case.