Case Law Details
Directorate Of Revenue Intelligence (HQRS.) Vs M/s. Spraytec India Ltd. (Delhi High Court)
The proviso to Sub-Section (2) of 28-I of the Customs Act prescribes the CAAR from allowing any application filed for advance ruling, where question raised in the application is pending in the applicant’s case before “any officer of customs, the Appellate Tribunal or any Court” or if the said question has already been decided by the Appellate Tribunal or any Court. In the present case, DRI had not issued any pre-consultation notice or show cause notice which would indicate that the question regarding classification of any goods was pending before DRI. Thus, even if it is accepted that an officer of DRI is an officer of Customs, it cannot be accepted that the question raised by the respondent in its application under Section 28H of the Customs Act was pending ‘in the applicant’s case’ before DRI. In order for a question to be considered as pending before any officer of customs, it would be necessary for the question to be raised in any notice enabling the assessee to respond to the said issue. It is only after this stage that it would be necessary for the officer of customs to render its decision on the question. Merely because an officer of customs contemplates that a question may arise, does not mean that the question is pending consideration. For a question to be stated to be pending, the concerned officer must formally set forth the same for the assessee to contest the same. Any preliminary exercise done by an officer of customs, to consider whether any question for consideration arises, would not preclude the CAAR from giving its advance ruling on that question. The possibility that a question would arise for consideration of a customs officer, appellate tribunal or court, is not a ground contemplated under Clause (a) of the proviso to Section 28-I(2) of the Customs Act. Clearly, a distinction must be made between that question pending consideration and a possibility of a question arising consideration.
FULL TEXT OF THE JUDGMENT/ORDER OF DELHI HIGH COURT
1. The appellant (Directorate of Revenue Intelligence, (Hqrs.), New Delhi – hereafter ‘DRI’) has filed the present appeal under Section 28KA of the Customs Act, 1962 (hereafter ‘the Customs Act’) impugning an order dated 08 .08 .2022, passed by the Customs Authority for Advance Ruling (hereafter ‘CAAR’), whereby the representations made by DRI for treating the CAAR’s order dated 05.10.2021 as void ab initio, was rejected. DRI had made representations contending that the said order dated 05.10.2021 had been obtained by the respondent by
“fraud and misrepresentation of facts” and therefore, was entitled to be declared as void ab initio in terms of Section 28K(1) of the Customs Act.
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