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TMI Blog2021 (9) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... tics Private Limited, located in the Free Trade Warehousing Zone (FTWZ). The petitioner clears the goods to its units located in the Domestic Tariff Area (DTA) as stock transfers for the purpose of trading as well as carrying out certain manufacturing activities. The petitioner states that a FTWZ is a Special Economic Zone (SEZ), wherein mainly trading, warehousing and other activities related thereto are carried out. 3. The learned counsel, appearing on behalf of the petitioner, mainly contended that the Advance Ruling dated 27.05.2013 in petitioner's own case had been ignored by the respondents, while passing the impugned order dated 03.02.2014. The Notification dated 16.05.2005 with reference to the Bill of Entries (8 in Nos.) from 10.01.2014 to 28.01.2014 were not considered with reference to the Advance Ruling rendered in the case of the petitioner. During the pendency of the writ petition, another 13 Bill of Entries were filed by way of miscellaneous application in the writ petition. 4. The petitioner has stated that the implication of the Advance Ruling with reference to the provisions of the Customs Act, 1962 (hereinafter referred to as the 'Act', in short) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the circulars. In such circumstances, the writ petition is entertainable and compelling an aggrieved person to go before the Appellate Authority, would do no service to the cause of justice. Therefore, it is contended that the subsequent judgment of this Court and in various other judgments, the Apex Court repeatedly held that no fruitful purpose would be served in such circumstances by directing the petitioner to approach the Appellate Authorities, in view of the fact that in the present case the circular itself is under challenge. 10. Though the learned counsel for the petitioner referred line of judgments on this, the principles are not in dispute that when the provisions of the Act or the Rules or the circulars issued by the Ministry of Finance is under challenge, then the Subordinate Authorities may not be in a position to contravene or take a different view than that of the issues decided and communicated by way of circulars. Thus, it is not necessary to repeat all those judgments as the principles are not disputed on this aspect. 11. The learned counsel for the petitioner is of an opinion that the circular impugned issued is in violation of the Notification dated 16.05.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed based on the representation submitted by the petitioner and the adjudication is yet to be completed. If at all the petitioner is of an opinion that he is entitled for an exemption, the petitioner is at liberty to place all these factors along with the judgments, enabling the Authorities to adjudicate the facts and circumstances involved in the case of the petitioner. Contrarily, in this writ petition, the petitioner cannot claim exemption directly and in such an event, the respondents are deprived from adjudicating the disputed issues. This apart, the petitioner in order to get further clarification or otherwise, may approach the Appellate Authorities. 15. The learned Senior Panel Counsel, appearing on behalf of the respondents, drawn the attention of this Court with reference to the decision made by the Advance Ruling Authority in Ruling No.AAR/Cus./01/2013 dated 27.05.2013. The said Ruling unambiguously states that the answer to the question formulated by the applicant as on the facts as projected by the applicant is in the affirmative. However, as noted supra, if at the time of adjudication, the Adjudicating Authority finds that the claim of stock transfer of goods is not l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red in respect of such issue alone is binding. Sub-section (2) of Section 28H provides the question on which the Advance Ruling is sought for shall be in respect of six sub-clauses i.e., (a) to (f), which are extracted as under:- "(2) The question on which the advance ruling is sought shall be in respect of, - (a) classification of goods under the Customs Tariff Act, 1975 (51 of 1975); (b) applicability of a notification issued under sub-section (1) of section 25, having a bearing on the rate of duty; (c) the principles to be adopted for the purposes of determination of value of the goods under the provisions of this Act. (d) applicability of notifications issued in respect of tax or duties under this Act or the Customs Tariff Act, 1975 (51 of 1975) or any tax or duty chargeable under any other law for the time being in force in the same manner as duty of customs leviable under this Act or the Customs Tariff Act; (e) determination of origin of the goods in terms of the rules notified under the Customs Tariff Act, 1975 (51 of 1975) and matters relating thereto. (f) any other matter as the Central Government may, by notification, specify." Thus, application may be subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner clears the goods to its units located in the Domestic Tariff Area (DTA) as stock transfers for the purpose of trading as well as carrying out certain manufacturing activities. The Notification dated 16.05.2005 unambiguously states that no exemption shall be applicable in such goods when sold in Domestic Tariff Area (DTA), are exempted by the State Government from payment of Sales Tax or Value Added Tax. 24. As far as the Advance Ruling is concerned, the facts would reveal that the Ruling was given based on the Maharashtra Government Notification and the Maharashtra State Value Added Tax Act. The findings would further reveal that the applicant proposes to clear the goods by way of stock transfer to their own manufacturing unit located in Pune, Maharashtra and pay the duties of Customs in terms of Section 30 of SEZ Act and proposes to avail the benefit of exemption Notification No.45/2005 Customs dated 16.05.2005 that exempts goods cleared from the SEZ to DTA from payment of whole of the additional duty of Customs leviable under Section 3(5) of the Customs Tariff Act, 1975 subject to the fulfilment of conditions mentioned in the proviso of the aforesaid Notification. Thus, st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eating the transaction on the factual scenario as projected by the applicant and not on analysis of the factual position. Thus, the Advance Ruling Authority themselves confined the scope of the Advance Ruling, so as to avoid any undue usage in respect of other transactions made by the applicant. When such a clarification is rendered in unequivocal terms, it is necessary that a factual adjudication is warranted. 29. The final decision of the Advance Ruling Authority would also clarify that the answer to the question formulated by the applicant on the facts as projected by the applicant is in the affirmative. However, as noted supra, if at the time of adjudication, the Adjudicating Authority finds that the claim of stock transfer of goods is not legally supportable, it would be open to the Authority to arrive at such conclusion as is available in law. The application of Advance Ruling Authority itself is narrowed down with reference to the transaction established before the Advance Ruling Authority and undoubtedly, not intended for its application in respect of the other Customs Authorities or in respect of different business/sale transactions. 30. The binding nature is to be decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clusion that the clarification is running counter to the Notification. However, application of Notification requires an adjudication of facts and on such adjudication if the applicant is entitled for exemption or not, is to be decided based on the Notification and on connected provisions. 32. As rightly pointed out by the learned Senior Panel Counsel for the respondents, the order impugned dated 03.02.2014 is issued based on the complaint given by the petitioner vide letter dated 31.01.2014 regarding denial of exemption from payment of additional duty of customs (SAD) leviable under Section 3(5) of the Customs Tariff Act, 1975. However, the issues are yet to be adjudicated as during the pendency of the writ petition also, the petitioner filed other Bill of Entries, which all are pending for adjudication. Thus, the Authorities Competent are bound to consider the disputed facts between the parties and take a decision on merits and in accordance with law by following the procedures as contemplated. 33. However, with reference to the challenge made in the writ petition, this Court do not find any infirmity, as such, in respect of the circular dated 30.12.2013 and the order passed, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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