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TMI Blog1986 (10) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 10 months and 13 days which fall short of 48 days of the basic requirement of minimum period of 2 years to be eligible for Transfer of Residence concession as laid down under Rule 2(a) of the Transfer of Residence Rules, 1978. It was also seen that during her stay abroad she had come on a visit to India and stayed in India between 12.9.1984 and 19.4.1985 for a total period of 219 days which was also over and above the period of six months provided for such short visits as condonable under Rule 5 of the Transfer of Residence Rules. It appears that the goods declared were examined and it was found that one T.V. set imported did not show any signs of use. The appellant had also requested for condonation of the short fall in her stay abroad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor therefore ought to Have granted transfer of residence facility to the appellant, and, in the case of the TV also, since it had been purchased against the same purchase voucher as the VCR, which had been found to be having signs of use by the authorities, it should also be allowed under TR Rules. 3. The learned S.D.R. Shri Bhatia raised a preliminary point of law that the power to condone the short-fall in the stay and short visits during the stay were matters of discretion with the lower authorities and in such a case the Tribunal in appeal cannot go into the exercise of discretion. He referred to the case of M/s. Bayer (India) Limited v. Collector of Customs, Bombay - 1986 (25) E.L.T. 689 (Tribunal) = 1986 (8) E.C.R. 301 (CEGAT BOMB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made by both the sides have been carefully considered. On the point raised by the S.D.R. that powers exercisable by the Collector in condoning the delay would not be a matter to be gone into appeal by the Tribunal, it has to be pointed out that even in the case law cited by him the Tribunal had expressed the view that there is no scope to interfere with the discretion exercised by the Board so long as it was not arbitrary or malafide and also as the Board did not exercise any quasi-judicial functions. Here the impugned order is definitely is a quasi-judicial order passed by the lower authority, further, this Tribunal had already ruled on a reference application on an identical issue in Reference No. 12/85, dated 16.5.1985 - Collector of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore 2 years because she was in advanced stage of pregnancy, and, due to certain sentimental reasons of being in the company of her mother at that time, as was submitted. The reason therefore is not one connected with the termination of work or vacation preceding such termination. Apparently at the time she returned to India her husband continued abroad. In this context therefore the finding of the Additional Collector that the reason for short-fall does not come within the ambit of rule 6 and that therefore the appellant had failed to satisfy the condition under Rule 2(a) of the Transfer of Residence Rules has to be accepted. In this view of the matter the further question of condonation of the short visits does not arise for consideration, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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