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K. Prabhavathi Reddy (Smt.) Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Tamil Nadu
Decided On
Reported in(1984)(17)ELT172Tri(Chennai)
AppellantK. Prabhavathi Reddy (Smt.)
RespondentCollector of Customs
Excerpt:
.....stated therein, the tribunal will be pleased to order duty free concession under transfer of residence rules, 1978 in respect of a colour t.v. set.2. this appeal coming up for orders upon perusing the records and upon hearing the arguments of shri pratap c. kothari, advocate for the appellant and upon hearing the arguments of shri a. vijayaraghavan, departmental representative for the respondent, the tribunal makes the following order : 3. by his order no. u.b. 597/82 dated 18-9-82, the assistant collector of customs, preventive general, madras, denied the transfer of residence concession to a colour t.v. on a finding that the appellant landed in india on 5-11-81 whereas the t.v. was purchased on 28-11-80; its usage being 23 days short of one year and it is not entitled to the.....
Judgment:
1. Appeal under Sec. 129A of the Customs Act, 1962, praying that in the circumstances stated therein, the Tribunal will be pleased to order duty free concession under Transfer of Residence Rules, 1978 in respect of a colour T.V. Set.

2. This appeal coming up for orders upon perusing the records and upon hearing the arguments of Shri Pratap C. Kothari, Advocate for the appellant and upon hearing the arguments of Shri A. Vijayaraghavan, Departmental Representative for the respondent, the Tribunal makes the following order : 3. By his order No. U.B. 597/82 dated 18-9-82, the Assistant Collector of Customs, Preventive General, Madras, denied the Transfer of Residence concession to a colour T.V. on a finding that the appellant landed in India on 5-11-81 whereas the T.V. was purchased on 28-11-80; its usage being 23 days short of one year and it is not entitled to the grant of the concession under the Transfer of Residence Rules, 1978.

When the matter was taken up in appeal, the Collector of Customs (Appeals), Madras, (by her order No. C4/432/82 dated 1-12-82) rejected it observing that in terms of Rule 2(b) of the Transfer of Residence Rules, the T.V. should be in the use and possession of the passenger for a period of one year, which condition, in this case is not satisfied and no relaxation was possible.

4. Before me the learned advocate for the appellant pointed out that initially the passenger, Mrs. Prabhavathi Reddy, came to India to attend a wedding in the family; her husband, Dr. K. Bhagya Reddy, was practising as a Doctor in Medicines attached to Green Hill Hospital, Dartford, Kent, U.K. and Darenth Part Hospital, Kent, U.K., as a neurologist and psychiatrist; due to change in programme Dr. Bhagya Reddy could not come with the family but stayed on in the U.K. The T.V.was in use in their household till 23-3-82 at Kent; when it was finally decided to wind up the house, it was entrusted to the shipper on 23-3-82 which was eventually shipped by the vessel 'State of Nagaland on 15-5-82. The advocate argued that the T.V. was thus in the use of a member of the family for a period of over 15 months. It should, therefore, be given the benefit under Rule 2(b) of the Transfer of Residence Rules, 1978.

5. The hearing of the case was continued on a number of occasions and on 13-1-84 the counsel for the appellant produced the following documents : (i) An invoice from Sigma Implex Ltd., London dated 28-11-80 for one National Television 26" Colour Remote VAT in favour of the appellant, residing at 68, Raeburn Road, Sidcup, Kent; (ii) Television Broadcast Receiving Licence No. C017901 dated 20-1-82 issued by the Home Department in favour of Dr. B. Reddy, 68, Raeburn Road, Sidcup, Kent, for the year ending December 1982 ; (iii) Copy of Television Broadcast Receiving Licence No. B092793 dated 14-1-81 issued again in favour of Dr. B. Reddy, for the period ending December 1981 ; (iv) A letter No. DA15/8RF/F dated 18-11-82 from the National TV Licence Records Office, Bristol BS 98ITL, addressed to Dr. B. Reddy explaining that a licence is automatically deleted from their records some six months after it has expired. It also states that for renewal of a licence the current licence must have been filed with the Records Office, leading to the conclusion that the existence of a licence for the year ending December 1982 would show that the licence expiring 31st December 1981 has been issued ; (v) A receipt for 163.22 issued by London Borough of Bexley, Town Hall, Erith, Kent in favour of Dr. Bhagya Reddy being the General Rate for the year ending 31st March, 1983.

The advocate explained that the T.V. was purchased by Mrs. Reddy for the use of the family and it is normally the custom for the lady to do the shopping and hence the invoice came to be issued in her name. The licences have been issued in the name of the husband as the house-owner.

6. I have also seen Passport No. Q. 039987 dated 18-1-82 issued by the High Commission of India, London to Dr. Kunta Baghya Reddy according to which he had left the Heathrow Airport on 6-4-82 and arrived at Bombay on 7-4-82.

7. The Departmental Representative contested the claim of the appellant pointing out that the claim under the Transfer of Residence Rules has been made by the appellant and not her husband; as she had arrived in India before the lapse of one year from the date of purchase of the T.V., the unit is not entitled to the concession under Rule 2(b) of the Transfer of Residence Rules, 1978.

8. Rule 2(b) of the Transfer of Residence Rules, 1978 reads as follows : "such person affirms by a declaration that the goods have been in his or his family's possession and use aboard for a minimum period of one year and the examination of the goods and the attendant circumstances do not indicate to the contrary;" For extending the benefit of concession under the Transfer of Residence Rules, the requirements are that the passenger has been residing abroad for a minimum period of 2 years and a declaration is made that the goods concerned had been in the possession and use of the passenger, or possession and use of his/her family for a minimum period of one year.

Ordinarily when the "family" moves as a whole the period of possession and use by the passenger, as well as of the family would coincide. But in this case certain special circumstances existed which separated the joinings of husband and wife. It is clear from the documents submitted that in this case the T.V. was purchased by the appellant for use of the family as a whole and it was in fact so used, as is evident from the licence for the set issued in the name of the husband as a hoaseholder. A strict reading of Rule 2(b) indicates that it is not necessary that the set should have been in the use of the passenger herself; it could be in the possession and use of her family. This was the case in the present instance; the set was in the use of the lady and/or her husband for over one year. Under the circumstances I allow the claim of the appellant and order that the T.V. set be extended the benefit of the Transfer of Residence Rules, 1978. The duty, if any, paid shall be refunded.


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