Customs, Excise and Gold Tribunal - Tamil NaduVydhehi Rethinam vs Collector Of Customs on 15 July, 1987Equivalent citations: 1987(14)ECC504, 1988ECR242(TRI.-CHENNAI), 1988(33)ELT197(TRI-CHENNAI)ORDERS. Kalyanam Member (J)1. This appeal is directed against the order of the Collector of Customs (Appeals), Madras, dated 6-1-1983 rejecting the Appellant's claim for the benefit of Transfer of Residence concession under theCustoms Act, 1962for a room air-conditioner and a car air-conditioner.2. The appellant was abroad in London for over two years and returned to India in 1981 and sought clearance of her personal effects and other goods in her use and possession for over one year in terms of Transfer of Residence Rules and the original authority namely, the Asst. Collector of Customs, Madras, while granting the benefit of transfer of residence concession in respect of all the goods, negatived the claim in respect of the two goods referred to supra on the ground that they "do not show signs of usage over a year". The appeal against the same was rejected under the impugned order out of which the present appeal arises.3. We find from the impugned order that the only ground on which the Transfer of Residence concession has been negatived is on the ground that the particulars of the model number were not indicated in the Service Bill dated 6-7-1981 by Kavamar Electrical Agencies, London. We also find that the benefit under the Transfer of Residence Rules has been given to the appellant in respect of all the other goods.4. Under the impugned order the lower appellate authority has not disputed the fact that the air-conditioners were purchased on 30-12-1980 as evidenced by the purchase voucher. When the purchase voucher has been accepted and when its authenticity has not been doubted, in our view, the lower appellate authority should have extended the benefit of T.R. concession to the appellant on the basis of the same. The appellant also produced evidence to show that the room air-conditioner was given for servicing to one Kavamar Electrical Agencies at London as evidenced by the service invoice dated 6-7-1981. This invoice has not been accepted on the ground that it does not contain the model number. When the purchase voucher has been accepted in respect of the air-conditioner and when there is no evidence contra that this was not in the use and possession of the appellant for the required period of a year and above, in our view, the lower appellate authority should have given the benefit of T.R. concession in favour of the appellant in respect of the same. The original authority rejected the T.R. benefits on the ground that the articles do not show signs of usage "over a year".In this context we would like to refer to the ruling of the Special Bench of the Tribunal |n the case ofShri B.K. Kishnani v. The Collector of Central Excise, New Delhi, reported in 1983 (13) ELT 1130, wherein the scope of Rule 2 of the Transfer of Residence Rules, 1978 has been discussed in extenso. It is held in the said ruling that "if possession of an article for the minimum period is established or accepted, use of the article during that period can normally be presumed. If a person has had an article like a VCR or a refrigerator in his possession, it is normally unlikely that he would not have made use of such articles." "It would be paradoxical if a careful owner who keeps his property in very good condition is penalised vis-a-vis a careless person who treats his property roughly, or an unscrupulous person who deliberately imprints "signs of use" on his (perhaps new) articles, 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." We would also like to refer to the ruling of the Tribunal dated 25-4-1986 in Customs Appeal No. 107 of 1986, to which one of us was a party, where the rejection of T.R. benefits by the original, authority on the ground that the article "looks new" or "does not show any signs of use" is not sustainable by merely ipso dixit and without valid reasons. The Special Bench in the Ruling referred to supra has held that "satisfactory possession or use of the article for the prescribed minimum period should ordinarily be considered as very strong evidence of use of the article during that period and in such a situation an article should not be denied the benefit of the Transfer of Residence Concession on the basis that it "looks new" or "does not show any signs of use". Taking the facts and circumstances of this case we hold that the appellant is entitled to the benefits of T.R. concession in respect of room air-conditioner and car air-conditioner and in this view of the matter the impugned order appealed against is set aside and the appeal is allowed.