Transfer of Residence Concessions for Passengers of Foreign Origin.
Date:
Friday, 25 March 2022
For Representational Purpose Only
Introduction :
India is one of the world's top destinations for international immigrants. As of 2015, about 5.2 million immigrants live in India, making it the 12th largest immigrant population in the world. Although India is not the world’s preferred immigrant destination, it is home to 5 million immigrants, according to the Census 2011. Data from the Population Division of the United Nations’ Department of Economic and Social Affairs noted a decline in immigrant numbers in India from 7.6 million in 1990 to 5.1 million in 2019. According to a White House press release on 26 June 2017, over 7,00,000 U.S. citizens reside in India.
In addition to the normal duty free allowances applicable on the import of baggage, the Baggage Rules permit some additional concessions on certain articles in the baggage of persons engaged in their profession abroad or in the baggage of persons transferring their residence to India. These concessions are being allowed under the Rules notified from time to time by the Department of Revenue (D.R.) under the Ministry of Finance (M.F.), Government of India. The Central Board of Indirect Taxes and Customs (C.B.I. & C.), who administers these rules and regulations, also issues circulars and instructions for their proper implementation. This article is an attempt to examine the concessions available to a passenger of foreign origin transferring his residence to India as there are some complaints that the concessions and allowances under the rule on Transfer of Residence under the Baggage Rules, 2016 (BR 2016) are being denied to the passengers of Foreign Origin arriving at our International airports. Let us look at the concessions available for a foreign national under these rules.
Rule on Transfer of Residence under BR 2016 :
There is no dispute on the fact that the Baggage Rules, 2016 [M.F. (D.R.) notification No. 30/2016-Customs (N.T.), dated 01.03.2016 as amended vide notification No. 43/2016-Customs (N.T.) dated 31.03.2016 and corrected vide corrigendum F.No. 520/09/2016-Cus.VI dated 01.04.2016] covers passengers of both Indian origin and foreign origin. Any person transferring his/her residence to India is allowed clearance of articles in his accompanied or unaccompanied bona fide baggage under rule 6 of these Rules. Rule 6 is as reproduced below :
“6. Transfer of residence. - (1) A person, who is engaged in a profession abroad, or is transferring his residence to India, shall, on return, be allowed clearance free of duty in addition to what he is allowed under rule 3 or, as the case may be, under rule 4, articles in his bona fide baggage to the extent mentioned in column (2) of the Appendix below, subject to the conditions, if any, mentioned in the corresponding entry in column (3) of the said Appendix.
(2) The conditions mentioned in column (3) of the said Appendix may be relaxed to the extent mentioned in column (4) of the said Appendix.
APPENDIX
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Duration of stay abroad
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Articles allowed free of duty
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Conditions
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Relaxation
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(1)
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(2)
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(3)
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(4)
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*(a)
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From three months upto six months
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Used personal and household articles, other than those mentioned in Annexure I or Annexure II but including articles mentioned in Annexure III upto an aggregate value of sixty thousand rupees.
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Indian passenger
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-
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(b)
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From six months upto one year
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Used personal and household articles, other than those mentioned in Annexure I or Annexure II but including articles mentioned in Annexure III, upto an aggregate value of one lakh rupees.
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Indian passenger
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-
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(c)
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Minimum stay of one year during the preceding two years.
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Used personal and household articles, other than those mentioned in Annexure I but including articles mentioned in Annexure II or Annexure III, upto an aggregate value of two lakh rupees.
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The Indian passenger should not have availed this concession in the preceding three years.
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-
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(d)
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Minimum stay of two years or more.
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Used personal and household articles, other than those mentioned in at Annexure I but including those mentioned in Annexure II or Annexure III, upto a value limit of five lakh rupees.
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(i) Minimum stay of two years abroad, immediately preceding the date of his arrival on transfer of residence;
(ii) Total stay in India on short visit during the two preceding years should not exceed six months; and
(iii) Passenger has not availed this concession in the preceding three years.
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(a) For condition (i), shortfall of upto two months in stay abroad can be condoned by Deputy Commissioner of Customs or Assistant Commissioner of Customs if the early return is on account of -
(i) terminal leave or vacation being availed of by the passenger; or
(ii) any other special circumstances for reasons to be recorded in writing.
(b) For condition (ii), the Principal Commissioner or Commissioner of Customs may condone short visits in excess of six months in special circumstances for reasons to be recorded in writing.
No relaxation.”
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[* for easy understanding the rows of the table above are numbered as (a), (b), (c) and (d)]
Rule 6 reproduced above clearly states that a person, who is engaged in a profession abroad, or is transferring his residence to India, shall, on return, be allowed clearance free of duty in addition to what he is allowed under rule 3 or under rule 4, articles in his bona fide baggage to the extent mentioned in column (2) of the Appendix, subject to the conditions, mentioned in the corresponding entry in column (3) of the said Appendix. If we take a close look at the conditions against the rows (a), (b) and (c) the phrase “Indian Passenger” is used in all these three rows while row (d) has no such condition. This clearly shows that the concessions at row (d) are applicable to all passengers, i.e. the passengers of Indian origin as well as of foreign origin if they satisfy all other conditions shown there. However, the passengers of foreign origin are being subjected to inconveniences by denying these benefits as the wordings of the rule are a bit confusing. It will go a long way in helping these passengers of foreign origin who are coming to India on work visa and as such transferring their residences to India for longer durations to get these concessions effortlessly if the CBIC issues some clarifications.
Rule on Transfer of Residence under BR 1998 :
Let us look at the earlier Baggage Rules, i.e. the Baggage Rules, 1998 [Notification No. 30/98-Cus. (N.T.), dated 02-06-1998] to understand the nuances and applicability of the said rule and to get more clarity on the issue. Under these Rules it can be seen that rule 5 covers the Professional returning to India while the rule 8 covers both Indian and foreign passengers coming on transfer of their residence. It can also be seen that in the new Rules both these rules have been combined together which has created the confusion and denial of concessions to the passengers of foreign origin transferring their residence to India. The rule 5 and 8 are extracted as below :
“5. Professionals returning to India. - An Indian passenger who was engaged in his profession abroad shall on his return to India be allowed clearance free of duty, in addition to what he is allowed under rule 3 or, as the case may be, under rule 4, articles in his bona fide baggage to the extent mentioned in column (2) of Appendix C.
APPENDIX C
(See rule 5)
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(1)
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Articles allowed free of duty
(2)
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(a) Indian passenger returning after at least 3 months.
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(i) Used household articles upto an aggregate value of Rs. 6,000.
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(ii) Professional equipment upto a value of Rs. 10,000.
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(b) Indian passenger returning after at least 6 months.
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(i) Used household articles upto an aggregate value of Rs. 6,000.
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(ii) Professional equipment upto a value of Rs. 20,000.
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(c) Indian passenger returning after a stay of minimum 365 days during the preceding 2 years on termination of his work, and who has not availed this concession in the preceding three years.
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(i) Used household articles and personal effects, (which have been in the possession and use abroad of the passenger or his family for at least six months), and which are not mentioned in Annex I or Annex II upto an aggregate value of Rs. 30,000.”
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“8. Transfer of residence. - (1) A person who is transferring his residence to India shall be allowed clearance free of duty, in addition to what he is allowed under rule 3 or, as the case may be, under rule 4, articles in his bona fide baggage to the extent mentioned in column (1) of Appendix F, subject to the conditions, if any, mentioned in the corresponding entry in column (2) of the said Appendix.
(2) The conditions may be relaxed to the extent mentioned in column (3) of the said Appendix.
APPENDIX F
(See rule 8)
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Articles allowed free of duty
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Conditions
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Relaxation that may be considered
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(1)
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(2)
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(3)
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(a) Used personal and household articles, other than those listed at Annex I or Annex II, but including jewellery upto ten thousand rupees by a gentleman passenger or rupees twenty thousand by a lady passenger.
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(1) Minimum stay of two years abroad, immediately preceding the date of his arrival on TR, (2) total stay in India on short visit during the 2 preceding years should not exceed 6 months, and (3) passenger has not availed this concession in the preceding three years.
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(a) For condition (1) Shortfall of upto 2 months in stay abroad can be condoned by Assistant Commissioner of Customs if the early return is on account of : (i) terminal leave or vacation being availed of by the passenger; or (ii) any other special circumstances.
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(b) For condition (2) Commissioner of Customs may condone short visits in excess of 6 months in deserving cases. (c) For condition (3) No relaxation
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(b) Jewellery taken out earlier by the passenger or by a member of his family from India.
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Satisfaction of the Asstt. Commissioner of Customs regarding the jewellery having been taken out earlier from India.
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-”
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Conclusion :
From the above discussion it is clear that the concessions under rule 6 of the Baggage Rules, 2016 are equally applicable to both Indian and foreign origin passengers transferring their residences to India. Thus there is no doubt on the applicability of rule 6 to a passenger of foreign origin.
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Author : M.P. Vasudevan - 25-03-2022
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