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TMI Blog2024 (8) TMI 615X X X X Extracts X X X X X X X X Extracts X X X X ..... but in the interest of consistency, certainty and trade facilitation, applications for advance rulings have been allowed and rulings have been issued on the questions raised in the application for advance rulings when the questions raised are not hit by the conditions in the first proviso to sub-section (2) of Section 28-I of the Customs Act, 1962. Also, provisions under the Section 28 of the Customs Act, 1962 provides for issue of notice on the person for short-levy or short-payment of duty, requiring him to show cause as to why he should not pay the amount specified in the notice provided that before issuing notice, the proper officer shall hold pre-notice consultation with the person chargeable with duty or interest in such manner as may be prescribed. It is further provided under Section 28 that the person chargeable with the duty or interest, may pay before service of notice on the basis of (i) his own ascertainment of such duty; or (ii) the duty ascertained by the proper officer. Though the fact of issue of pre-consultation notice is not on record but the applicant has taken further steps to take up the matter for reassessment of Bills of Entry and payment of differential du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucts mentioned therein are claiming correct rate of IGST leviable on the import of the said products? 3. Further, the applicant has inter alia stated that, they are a global leader in manufacturing of Lithium-ion Battery Cells; they have set up a facility unit by the name of M/s. ATL Battery Technology (India) Pvt. Ltd. for manufacturing Lithium-ion cells in India to cater to the business requirement of world-renowned branded smart phones and other ICT products. The applicant has also stated that, they shall import 13 different items of raw material from foreign suppliers to manufacture Lithium-ion Cells in India and provided the details of the products imported/to be imported by them. 4. Comments in the matter have been received from the concerned Commissionerate of Customs, wherein, it is inter alia stated that they are in receipt of a few letters from DRI wherein it is informed that investigation in the matter is going on; however, the same has not been disclosed by the applicant in their application for advance ruling; in view of the above, and in terms of the proviso to Section 28-I of the Customs Act, 1962, the instant application for advance rulings is liable for rejection. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... square] other than lithium-ion battery [and other lithium-ion accumulators including lithium-ion power banks] . She also stated that, as there is clear wording that the entry will not be including the separators and accumulators of lithium-ion battery hence there is no question of making this entry applicable in the present matter on the goods involved in the Advance Ruling application namely cathode and separator. She gave details with regards to the application of entries namely 523A of the Not. No. 50/2017, dated 30-6-2017 as amended. 376AAA 453 of Rate Notification No. 1/2017-C.T. and explained the basis of few classifications and their understanding for the HSN adopted by them like 8545 19 00 for Anode due to graphite content. She mentioned that they would also be giving detailed submissions for the sake of ease of reference. 5.3 The applicant has also given detailed submissions vide their email dated 3-10-2023. 6. I note that the concerned Commissionerate has commented that DRl has been investigating the matter related to short payment of IGST on Cathode coating , Anode sheet and Separator, however, the same has not been disclosed by the applicant in their application at col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the applicant, it is mentioned that inquiry is being made in connection with the import of parts of batteries under CTH 8507 90 90. The instant application for advance ruling has been filed on 10-7-2023 i.e. after issue of Summons to the applicant, however, the fact related to on-going inquiry has not been disclosed in the application for advance ruling. 8.3 As per definition of advance ruling under Section 28E, it means a written decision on any of the questions referred to in Section 28H, raised by the applicant in his application in respect of any goods prior to importation or exportation. In this regard, it is noted that the Customs Authority for Advance Rulings, in a number of rulings has maintained that though the definition of advance ruling in Section 28E refers to rulings on questions related to goods prior to their importation but in the interest of consistency, certainty and trade facilitation, applications for advance rulings have been allowed and rulings have been issued on the questions raised in the application for advance rulings when the questions raised are not hit by the conditions in the first proviso to sub-section (2) of Section 28-I of the Customs Act, 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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. The CAAR had also examined the aforesaid aspect and we concur with the view of the CAAR and find no infirmity with the impugned order rejecting the representations made by DRI. The Hon ble High Court ordered that the appeal is unmerited and, accordingly, dismissed. 8.6 I further note that 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 pend ..... 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