Salil Kumar Data, J.
1. This rule is directed against the order passed by the Additional Collector of Customs, Bombay dated May 31, 1973. The relevant facts are as follows :-
The petitioner arrived at Santacruz Air Port, Bombay on February 6, 1973 by flight No. 4 from London after a stay of 5 years and 18 days abroad. At the time of his arrival, he imported goods valued at Rs. 21,116/- in addition to to the goods released free under Rule 2 of the Baggage Rules 1970. The petitioner was allowed to clear goods valued at Rs. 280/- under Rule 3 of Baggage Rules, free of duty, and, goods valued at Rs. 864/- were allowed clearance free of duty under the Transfer of Residence Rules. The petitioner had a used calculating machine valued at Rs, 972/- and this was found to be in excess of his allowance. This machine could not be released as bona fide baggage under the Baggage Rules and required an I.T.C. Licence for its import. In absence of such licence, it was held, the import of the machine was made in contravention of Import (Trade) Control Order No. 17/55 dated December 7, 1955 as amended and deemed to have been issued under Section 11 of the Customs Act, 1962. Such importation, it was further held rendered the petitioner liable for action under Section 111(d) of the Customs Act, 1962.
2. The case was so adjudicated by the Assistant Collector of Customs, Air Customs Pool, Bombay on February 6, 1973 and the said machine was confiscated by him under Section 111 of the Customs Act but the petitioner was allowed an option to pay a fine of Rs. 200/- in lieu of confiscation. It was further held (hat the goods were dutiable under Section 125(2) of the Customs Act, 1962 and prescribed warehouse charges were to be paid before the same was cleared into the town.
3. A review was preferred against the said order by the petitioner before the Additional Collector of Customs, Bombay, who by his order dated June 16, 1973 found from the records of case that the petitioner was an Economist and he had used the calculating machine in course of his research work. The calculating machine it was held, was not an item of household effect and could not be released free of duty under the Transfer of Residence Rules. The Additional Collector further found that it Was in fact an office equipment and taking into consideration the profession of Sri Haider, he took a lenient view and directed release of the machine on payment only of the duty, as a special case. The order passed by the Assistant Collector of Customs was accordingly reviewed under Section 130 of the Act and the fine of Rs. 200/- was remitted and the calculating machine was directed to be released on payment of duty only.
4. Against this decision, it appears that the petitioner filed an 'Appeal for Revision Order' under the provision of Section 131 of the Indian Customs Act, 1962 to the Secretary, Ministry of Finance Department of Revenue, Government of India, New Delhi. It is the petitioner's case that no reply was received by him to this petition Be that as it may, he has now challenged in this Rule the orders passed by the Additional Collector of Customs, Bombay ptay-ing for appropriate writ for quashing the same.
5. There is no dispute that the Baggage Rules, 1970 apply to the facts of this case. Under Rule 2 the used articles of personal ware (excluding jewellery) and articles in personal use of a passenger for satisfying daily necessities of life and a wrist watch not exceeding Rs. 500/- in value may be passed free of duty. In addition, a passenger of and above the age of 12 years is also allowed to import free of duty articles upto the value of Rs. 500/- if such articles are for the use of the passenger or his family or for making gifts or souvenirs. Rule 5 is as follows :
Rule 5. 'Allowance for professional tools.-A passenger who has resided abroad in one country for over three months may be allowed clearance free of duty of such used instruments, apparatus or appliances as are specially designed for use in professional or calling followed by him and which any person following the same profession or calling would ordinarily carry with him in his professional tour.'
The petitioner admittedly is an economist and a calculating machine is a part of his instruments which are designed for use and in fact used in profession or calling followed by him. The Additional Collector has found that the machine was used by the petitioner in course of his research work abroad. Such instruments are also ordinarily carried by such person with him for his professional work (including professional tours) on tour when engaged in his research work as found by the Additional Collector in respect of the petitioner. Accordingly, it appears that Rule 5 of Baggage Rules, 1970 applies to such case and there is no limit of the amount or value for such importation. It is unfortunate that the Additional Collector of Customs, Bombay did not consider Rule 5 at all though he noted that the calculating machine was an office equipment and that the petitioner was an economist and he used the calculating machine during the course of his research work. For these reasons I am of the opinion that the petitioner was entitled to clearnace of the calculating machine free of duty and the Customs Authorities acted in excess of their powers and in contravention of Rule 5 of the Baggage Rules, 1970 in disallowing the petitioner clearance of the machine free of duty.
6. Though the events happened at Bombay the petitioner has elected to make his application at Calcutta. It will appear from the affidavit-in-oppo-sition filed on behalf of the respondent Nos. 1 to 5, the Union of India as also the Customs Authorities at New Delhi, Calcutta and Bombay, that this machine has been sent on bond to Calcutta for clearance by the petitioner if he was so advised. But for the fact the machine is at present at Calcutta, I would be inclined to hold that this court has no jurisdiction to entertain this application as disallowance of clearance of the instrument free of duty had taken place at Bombay and further representation had been made at Delhi under Section 131 of the Act though in the affidavit-in-opposition no point about jurisdiction has been raised. For these reasons I am of opinion that this application is maintainable in this Court.
7. For all these reasons, this Rule succeeds and is made absolute. Let a writ in the nature of Mandamus issue directing the Customs Authorities to release the calculating machine to the petitioner free of duty. Let appropriate writ be issued accordingly.
8. The respondents pray for stay of operation of the order. There will be a stay of operation of the order for a period of four weeks. Mr. Chunder states that the affidavit-in-opposition was duly filed in the department but it is not with the record. He has a duplicate copy of the same duly stamped and affirmed. I direct that this copy of the affidavit-in-opposition be kept with the record.
There will be no order for costs.
Rule made absolute.