TMI Blog2023 (1) TMI 751X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. There are no infirmity with the impugned order rejecting the representations made by DRI - appeal dismissed. - CUSAA 155/2022 and CM No. 47698/2022 - - - Dated:- 11-1-2023 - HON' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who appeared on behalf of Revenue in that matter, confirmed that the Bill of Entry would be assessed and the provisional order would be passed shortly. The Coordinate Bench of this Court had disposed of the said writ petition by directing the Revenue to issue a provisional assessment order at the earliest and preferably, within a period of two weeks from that date. 5. Admittedly, the concerned authority passed the final assessment order dated 08.02.2019 assessing the goods imported against the bill of entry dated 14.01.2019 as covered under the CTH 84248990. 6. Thereafter, the respondent filed an application before the Authority for Advance Ruling (AAR), seeking a ruling on the classification of goods in question under the Custom Tariff Act, 1975. In terms of Section 28F(3) of the Customs Act, the respondent s application was transferred to the CAAR on the said Authority being constituted 7. The CAAR issued a ruling dated 05.10.2021 in favour of the respondent, accepting its classification of the goods in question. DRI did not issue any summons immediately after May, 2019; it once again issued the summons in March, 2022 (summons dated 02.03.2022 and 09.03.2022). The respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of opinion between the concerned Commissioner of Customs Preventive, Jodhpur and DRI, Jaipur, which had vide letter dated 01.04.2021 had informed this Authority that as per the records available, this office has not issued any SCN to MIs 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 that DRI, New Delhi was investigating the issue of appropriate classification of aerosol valves allowed final clearance by the jurisdictional customs officers. Therefore, the question before me narrows down to whether the brief declaration regarding the investigation by DRI, New Delhi by the applicant (in para 6 of Annexure -1 of the application) and subsequent non-elaboration thereof tantamount to fraud or misrepresentation of facts by the applicant. 10. At the material time, the respondent believed that the goods imported under the Bill of Entry, which were pending clearance in January, 2019, had been withheld on account of an investigation commenced by DRI. It had, accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order, either allow or reject the application : Provided that the Authority shall not allow the application 3 [***] where the question raised in the application is - (a) already pending in the applicant's case before any officer of customs, the Appellate Tribunal or any Court; (b) the same as in a matter already decided by the Appellate Tribunal or any Court : Provided further that no application shall be rejected under this sub-section unless an opportunity has been given to the applicant of being heard: Provided also that where the application is rejected, reasons for such rejection shall be given in the order. (3) A copy of every order made under sub-section (2) shall be sent to the applicant and to the 4 [Principal Commissioner of Customs or Commissioner of Customs]. (4) Where an application is allowed under sub-section (2), the Authority shall, after examining such further material as may be placed before it by the applicant or obtained by the Authority, pronounce its advance ruling on the question specified in the application. (5) On a request received from the applicant, the Authority shall, before pronouncing its advance ruling, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 16. The CAAR had also examined the aforesaid aspect and had observed as under:- 9.6 Let us for argument sake consider the course of events that would have been followed by this Authority had the applicant made a fuller disclosure regarding the on-going investigation by DRI, New Delhi (noting that the applicant states that they were not aware of the continuation of such investigation). 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 28-1 (2) of the Customs Act, 1962. In a recent ruling in the application of MIs HQ Lamps Manufacturing Co. Pvt Ltd., this Authority has opined that an application may be considered pending before any officer only if it is pendi ..... 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