2009 (9) TMI 56 - AAR - Customs

Application for Advance Ruling before AAR Meaning and scope of term already pending held that - The words already pending should, therefore, be interpreted to mean already pending as on the date of the application and not with reference to any future date

Issues Involved:
1. Whether the Authority for Advance Rulings (AAR) can proceed with the application for advance ruling despite the Department's objections.
2. Whether the import of goods as samples before filing the application disqualifies the applicant from seeking an advance ruling.
3. Whether subsequent imports during the pendency of the application affect the eligibility for advance ruling.
4. Whether the issuance of a show cause notice after the filing of the application affects the maintainability of the application.

Detailed Analysis:

1. Whether the Authority for Advance Rulings (AAR) can proceed with the application for advance ruling despite the Department's objections:
The Department filed miscellaneous applications under Regulations 11 and 18 of the Authority for Advance Rulings (Central Excise, Customs and Service Tax) Procedure Regulations, 2005, arguing that the AAR should not proceed with the application as it is liable to be rejected in limine. The Department contended that there were mistakes of fact or law in the order of admission. However, the AAR found no merit in these preliminary points, stating that the import of goods as samples for non-commercial purposes does not affect the eligibility to apply for advance ruling. The AAR emphasized that a narrow construction of the provision goes against its spirit and rationale.

2. Whether the import of goods as samples before filing the application disqualifies the applicant from seeking an advance ruling:
The Department argued that the applicant had imported goods before filing the application, which should disqualify them from seeking an advance ruling. The AAR noted that the import of goods as samples, which were not meant for sale or commercial purposes, should not be considered in determining whether the activity remains a proposed activity. The AAR held that importing a small quantity as samples for statutory authorities or market study does not forfeit the eligibility to apply for advance ruling. The AAR rejected the narrow interpretation suggested by the Department, stating that the import contemplated under Section 28 E is an import of goods in commercial quantities.

3. Whether subsequent imports during the pendency of the application affect the eligibility for advance ruling:
The Department contended that even imports made subsequent to the date of the application should be considered in determining whether the activity is a proposed activity. The AAR rejected this contention, stating that the eligibility for advance ruling should be judged with reference to the date of filing the application. The AAR emphasized that the applicant's eligibility should not be affected by imports made during the pendency of the application. The AAR stated that the essence of advance ruling is not changed by the applicant entering into business during the pendency of the application.

4. Whether the issuance of a show cause notice after the filing of the application affects the maintainability of the application:
The Department argued that a show cause notice issued after the filing of the application should bar the AAR from proceeding with the application. The AAR found no merit in this objection, stating that the date of filing the application is the relevant date for considering the validity and maintainability of the application. The AAR noted that the show cause notice was issued after the application was filed and that the Authority had not been apprised of the notice before passing the order admitting the application. The AAR reiterated that the pendency of proceedings should be determined with reference to the date of filing the application, and subsequent initiation of proceedings cannot bar the hearing on merits.

Conclusion:
The AAR concluded that the miscellaneous applications filed by the Department lacked merit and substance. The AAR held that the import of goods as samples before the filing of the application and subsequent imports during the pendency of the application do not affect the eligibility for advance ruling. The AAR also held that the issuance of a show cause notice after the filing of the application does not affect its maintainability. Therefore, the AAR rejected the miscellaneous applications and decided to proceed with the hearing on merits.

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