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TMI Blog1983 (4) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... we are accordingly dealing with this case in some detail. 3. The case turns on the interpretation and application of certain provisions in Rule 2 of the Transfer of Residence Rules, 1978. For facility of reference, this said Rule 2 is reproduced below : - Subject to the provisions of the Baggage (Conditions of Exemption) Rules, 1976 and Rule 3 of these rules the personal and household effects, of a person on a bona fide transfer of residence to India, shall be exempted from duty subject to the following conditions, namely : - (a) such person has been residing abroad for a minimum period of two years immediately preceding the transfer of residence and is transferring his residence to India for a minimum of stay of one year; (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods and consideration of the attendant circumstances by the revisional authority. 5. In the present case, Shri Krishnani, who was employed as a Personal Assistant in the Embassy of India, Berne, was transferring his residence to India after staying abroad for over six years. While a number of articles brought by him were allowed the benefit of the Transfer of Residence Rules, this was denied in respect of a Mini-refrigerator, a Panasonic Video Cassette Recorder (VCR) and a Philips Colour TV set. So far as the last item is concerned, it was given the benefit of the concession at the appeal stage and need not be further referred to. As regards the remaining two items, the Mini-refrigerator was denied the benefit on the basis of exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les had not been used, Shri Nair submitted that it would be very difficult to give detailed reasons for coming to such a conclusion. However, by examination of an article, one could form an overall impression as to whether it has been used or not. He submitted that the lower authorities has used their judgment properly in this regard and that if deemed fit we might also examine the articles and come to our own conclusion in the matter. For reasons which follow, we have not considered it necessary to examine the articles. 8. In the first place, we would observe that the claim for the benefit of the Transfer of Residence concession in respect of these two articles was denied basically on the ground that they were not found on inspection to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition, it would still be somewhat impracticable to bring in experts in used VCR s, or experts in the examination of used articles, to give an expert opinion as to whether an article has or has not been used for a period of one year. 10. According to our understanding, the logic behind the Transfer of Residence concession is that a person who has been maintaining an establishment abroad would have acquired a number of articles commensurate with his status and with the availability and prices of goods in the country in which he is living, so as to provide himself with the necessities and some of the comforts of life. When such a person has to transfer his residence and return to India, it is considered reasonable that he should not be as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cles. But such fine distinctions and untenable discriminations are bound to follow if the criterion of use (over and above that of possession) is raised to a fetish. 11. Exceptions, where despite a clear indication of possession, there is an equally clear indication that the goods have not been used, could no doubt exist. The following are some hypothetical examples : - (i) Where the article in question could not possibly have been used in the place where it is said to have been used : for instance, electrical articles working at 220 volts in a country where the electric supply is at 110 volts; (ii) Where the article could not have been used in view of some other reason : for instance, a TV set which is claimed to have been used in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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