1. In this appeal under Section 129-A of the Customs Act, 1962, it would appear that (a) the Appellant was continuously residing in London from 19.12.79" to 11.7.82; (C) he claimed the benefit of exemption under the T.R. Rules in respect of the following (d) in adjudication, it was only item 5-6 supra that were given the benefit of exemption claimed: (e) in appeal, the Collector of Customs (Appeals) extended the benefit of exemption for item 2-4 supra as well; (f) the subject matter of the instant appeal is thus item I only, namely, the two air-conditioners; (g) while the adjudicating officer had held that they were "brand newnot used", the Appellate Collector would appear to have preceded to hold that notwithstanding their purchase on 15.12.80, the appellant's contention of having used them is not plausible because England is a cold country where centrally heated accommodation is provided and there is hardly any scope for using the articles in question. The claim for use for nearly two, years is inconsistent with "such newness as has been found on examination by the lower authorities.
(a) the learned Collector could not be as categorical as the adjudicating authority in assessing the user of the articles ; (b) nevertheless, he presumes without any authority that in England every residential accommodation is centrallly heated and there can thus be no use for the air-conditioners.
3. On a query by us, the learned Departmental Representative had confirmed after enquiry from the Deputy Collector of Customs, Import Cargo CWC, Gurgaon Road, New Delhi who is having the custody of the lair-conditioners that they were found to be fitted with heating coils and are capable of being used for cooling as well as heating.
4. They were admittedly purchased on 15.12.80. There is no dispute about this. They could also be. used for heating as well as for cooling. The assumption of central heating in every place in England was without any evidence whatsoever and was unwarranted. In the circumstances following respectfully the decision of the Tribunal in the case of Shri B.K. Kishnani v. Collector of Customs, New Delhi 1983 ELT 1130 : 1983 ECR 1486D-CEOAT), we hold that the appellant is entitled to the benefit of exemption 1 under the T.R Rules.