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Mahesh Kumar Gupta Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1983)LC2114DTri(Delhi)
AppellantMahesh Kumar Gupta
RespondentCollector of Customs
Excerpt:
.....bench on 13-9-1983, the question of the decree referred to by the assistant collector came up and shri singh offered to produce a copy of the decree as well as the judgment, if given 15 days' time. he has subsequently submitted a copy of the decree dated 1-12-1981 passed by the county court of birmingham. apparently there was no separate judgment connected with it.5. appearing before us for the appellant, shri singh stated that the articles had been purchased on 22-12-1980. he referred to the sales invoice bearing that date which is on the record. this shows the two articles and gives the name of the purchaser as "mr. mahesh kumar". he stated that no question had been raised that the invoice was not genuine.6. the decree dated 1-12-1981 shows that the marriage between the appellant and.....
Judgment:
1. This is an appeal against the Order-in-Appeal No. 437/82 dated 14-4-1982, passed by the Collector of Customs (Appeals), New Delhi. The Collector had upheld the order of the Assistant Collector denying the benefit of the Transfer of Residence concession to a colour TV set and a Video recorder brought by the appellant.

2. From the records it is seen that the Assistant Collector had observed that the abovementioned articles had not been used by the appellant. He was asked to operate them but failed to do so. According to the Assistant Collector, he had stated that these articles were lying with his in-laws from whom he got them after a decree (annulling his marriage). There was no observation that the articles had not been used at all.

3. The Collector (Appeals) observed that there was an admission by the appellant that the items had been lying with his in-laws. The Collector (Appeals) held that the items could not have been in the possession and use of the appellant or his family abroad. He accordingly rejected the appeal.

4. When this matter came up before our predecessor Bench on 13-9-1983, the question of the decree referred to by the Assistant Collector came up and Shri Singh offered to produce a copy of the decree as well as the judgment, if given 15 days' time. He has subsequently submitted a copy of the decree dated 1-12-1981 passed by the County Court of Birmingham. Apparently there was no separate judgment connected with it.

5. Appearing before us for the appellant, Shri Singh stated that the articles had been purchased on 22-12-1980. He referred to the sales invoice bearing that date which is on the record. This shows the two articles and gives the name of the purchaser as "Mr. Mahesh Kumar". He stated that no question had been raised that the invoice was not genuine.

6. The decree dated 1-12-1981 shows that the marriage between the appellant and his former wife was solemnised on 4-8-1979. On 19-10-1981 a preliminary decree had been made that the marriage should be annulled unless sufficient cause was shown within six weeks. No such cause having been shown, the decree was made absolute on 1-12-1981. Shri Singh stated that prior to their separation the appellant was living with his in-laws and the articles in question were being used by both of them. After the marital disagreement, the appellant left the premises of his in-laws, and also took away these articles, which were his property. Shri Singh pointed out that the articles had been purchased on 22-12-1980, whereas the appellant arrived in India on 29-3-1982. Thus the articles had been in the possession and use of himself and/or his family for over a year. He pointed out that under the Transfer of Residence Rules it was not necessary that the articles should have been in the use of the passenger personally.

7. Shri Singh contested the observation of the Assistant Collector that the appellant did not know how to use the two articles. He stated that the appellant was an educated man and would certainly have known how to use the articles. In fact, before the Collector (Appeals) he had demonstrated his knowledge. Before the Assistant Collector he could not demonstrate the use of the articles because they could not be plugged into a power source.

8. Shri Singh strongly relied on the decision of the Tribunal in the case of B.K. Krishnani v. the Collector of Customs & Central Excise, New Delhi, reported in 1983 E.L.T. 1130, wherein it had been held that satisfactory possession of an article should ordinarily be considered as a very strong evidence of use.

9. We observe that in this case there has been no doubt that the articles were purchased in the name of the appellant and well before one year from the date of his arrival in India. In the absence of anything to the contrary, he should be presumed to be the owner of the articles. The doubt has been raised by the lower authorities that because he was originally staying with his in-laws and thereafter left them, he could not have used the articles for the entire period from the date of their purchase. It also appears that there has been some misunderstanding regarding the nature of the decree to which reference was made : apparently it was understood as a decree relating to the possession of goods or division of property. However, the decree, of which a copy has been filed before us, only relates to the annulment of marriage and has no reference to any division of property. There is substance in Shri Singh's contention that under the Transfer of Residence Rules the articles were required to have been in the possession and use of the passenger's family, and not only of the passenger himself. In the present case, prior to the annulment of the marriage, the ex-wife of the appellant should be deemed to have been a member of his family. It appears that the two articles were in the possession and use of both of them jointly until their separation, and thereafter (perhaps after some time gap) in the possession of the appellant alone. In the circumstances of the case, it is reasonably evident that the articles were in the possession and use of the appellant and/or his family for over a year. We also find that there is no allegation in this case, as there is in some other cases, that the articles were brand new and did not show signs of use. As regards the observation of the Assistant Collector that the appellant did not know how to use the articles, it seems somewhat unlikely that in these days even a person of normal education (and particularly one who has held a job abroad as an Assistant Sales Manager) would not know how to operate a TV set or a Video recorder. In any case, as pointed out by Shri Singh, it is sufficient for the purposes of the Transfer of Residence Rules if the articles have been used by the family of the passenger and not necessarily by the passenger himself. Prima facie, therefore, the appellant deserves to be given the benefit of the Transfer of Residence Rules in regard to these articles.

10. On our indicating our tentative conclusions as above, Shri Ramanathan, appearing for the Department, had no particular submissions to make. We accordingly confirm the above tentative conclusions and allow the appeal.


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