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TMI Blog2022 (8) TMI 1394X X X X Extracts X X X X X X X X Extracts X X X X ..... sued and they had replied in the negative. Noting the indisputable facts that the previous clearances had been allowed finally, i.e. without recourse to provisional assessment by the jurisdictional customs officers and no pre-consultation notice or show cause notice had been issued by any of the competent authority, this Authority would not have invoked the proviso (a) to Section 28-I(2) of the Customs Act, 1962. In a recent ruling in the application of M/s. HQ Lamps Manufacturing Co. Pvt. Ltd., this Authority has opined that an application may be considered pending before any officer only if it is pending before an officer in formal manner before an officer who is competent to answer the said question in terms of specific powers vested with the officer under the Customs Act. Having carefully considered the representation of DRI, it is not found that they have proffered any evidence of fraud or misrepresentation of facts by the applicant, which may have coloured my ruling even remotely. Having completed the examination of the representation filed by DRI, New Delhi under Section 28K of the Customs Act, 1962, the said representation is rejected. - CAAR/Del/07/2022 in Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms have been defined with retrospective effect and DRI officer has been assigned function of proper officer under the Customs Act, 1962. 4. Recognizing the precedence value of the issue raised in the representation and the need to determine at the outset the competence of officers of customs, other than the jurisdictional customs officers based on the declaration of the applicant regarding the concerned Principal Commissioner or Commissioner of Customs, the authorized representative, namely the Additional Director, DRI, New Delhi was requested to appear for Personal Hearing on 27-6-2022 to determine question(s) relating, inter alia, to locus standi to file an application under Section 28K and appropriate stage at which proviso to Section 28-I(2) of the Customs Act, 1962 can be invoked. The Customs Authority for Advance Rulings, Mumbai was also requested to co-chair the personal hearing as decision in the proposal of DRI would have significant precedence value. 5. The said Personal Hearing eventually took place on 5-7-2022. As regards the locus standi, the Additional Director (DRI) referred to Section 28K of the Customs Act, 1962 and mentioned that DRI is covered under its pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tance of DRI, Headquarters; the applicant company moved the Hon ble Delhi High Court and order dated 6-2-2019 was passed and later the said consignment had been released on 8-2-2019 without taking any bond or bank guarantee under CTH 8424 89 90; from ruling dated 5-10-2021, it may be noted that the comments had been obtained not only from the concerned Commissioner of Customs, i.e. Commissioner of Customs (Preventive), Jodhpur but even comments were sought as also the clarification was obtained from DRI, Jaipur and clarifications had been furnished not only by the concerned Commissioner of Customs, i.e. Commissioner of Customs (Preventive), Jodhpur but also DRI, Jaipur had furnished the comments, hence it is obvious that not only the concerned Commissionerate but also the DRI, Jaipur were not only aware but had in fact participated in the proceedings before the Authority pursuant to which Ruling had been issued on 5-10-2021; therefore, it is not the case of any suppression of facts, or hiding the fact or misrepresenting; the applicants had no power to come to know the status of investigation being conducted by DRI; DRI had mixed up the facts pertaining to two different companies i. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s required had clearly mentioned that goods covered under two bills of entry dated 14-1-2019 at ICD Garhi-Harsaru had been detained by the Customs authority on the instance of DRI Headquarters, and the said goods were eventually released without taking any bond or bank guarantee and the goods were cleared under CTH 8424 89 90. Therefore, the contention of the DRI, New Delhi regarding non-disclosure of the fact regarding investigation is not correct. Thereafter, during the procedure prescribed under the Customs Act and CAAR Regulations, 2021, this Authority had ascertained from DRI, Jaipur whether any show cause notice had been issued to the applicant since there was a reference to difference of opinion between the concerned Commissioner of Customs Preventive, Jodhpur and DRI, Jaipur, which had vide letter dated 1-4-2021 had informed this Authority that as per the records available, this office has not issued any SCN to M/s. Spraytech India Limited. 9.4 It is not in dispute that no show cause notice had been issued to the applicant by DRI, New Delhi regarding the past clearances at the time of the applicant filing application before the erstwhile AAR, even if it is acknowledged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted with the officer under the Customs Act. An illustrative list of such situations would include cases wherein a show cause notice has been issued; bill of entry has been provisionally assessed under Section 18 of the Customs Act, 1962; the matter is pending before the Special Valuation Branch of the Customs Commissionerate for the purpose of valuation of the goods in question; or the proper officer has held the pre-notice consultation with the applicant in terms of the proviso of sub-section (a) of Section 28(1) of the Customs Act, 1962. Therefore, in cases, such as the extant case, wherein an officer of customs is engaged in an investigation that may result in formulation of a question that would be posed before another competent officer would not qualify as pending before an officer . 9.7 Before concluding, I wish to emphasise that the ruling pronounced by this Authority in the case of the applicant, M/s. Spraytech India Limited was based on the submissions made by the applicant and considering the views of the jurisdictional Commissioner of Customs, noting that the applicant had approached this Authority to obtain certainty on the issue of classification based on their exp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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