TaxTMI 
TaxTMI 
2023 (1) TMI 751
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....t disclosed that the investigation in respect of the import of goods made by the respondent was being conducted by DRI. It claims that if such disclosure was made by the respondent in its application, the application would be rejected in terms of the proviso to Section 28-I of the Customs Act. 3. The respondent had imported actuator and aerosol valves meant for perfumes and toilet sprays. According to the respondent, the said goods were classified by the respondent under various sub-heads of Chapter 84 of HSN Code. According to the respondent, the same were covered under the Customs Tariff Heading (CTH) 84248990. According to DRI, the goods were required to be classified under CTH 9616 and were subject to higher rate of custom duty than the goods classified under CTH 84248990. 4. It is stated that the office premises of the respondent were searched by DRI on 15.01.2019. Thereafter, various summons were issued by DRI between the period of January to June, 2019. According to the respondent, the last summon issued by DRI in the year 2019, was on 16.05.2019. It is material to note that the petitioner had imported certain goods against a Bill of Entry dated 14.01.2019. The said consig....
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.... was passed by DRI in respect of the said Bills of Entry. The respondent had disclosed in its application that the goods imported under the two Bills of Entry at ICD Garhi Harsaru, had been detained at the instance of DRI, were subsequently released. 9. The CAAR had considered DRI's representation and found that there was no misrepresentation or suppression of facts on the part of the respondent. The relevant extract of the impugned order setting out the CAAR's reasoning for its aforementioned conclusion is set out below:- "9.3 On careful perusal of the case file, I find that the applicant in para 6 of Statement of relevant facts having a bearing on the question(s) on which advance ruling is required had clearly mentioned that goods covered under two bills of entry dated 14.01.2019 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 84248990. Therefore, the contention of the DRI, New Delhi regarding non-disclosure of the fact regarding investigation is not correct. Thereafter, during the procedure prescribed u....
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....ur, inviting their comments. Undisputedly, the officer of the concerned Commissionerate as well as DRI, Jaipur participated in the proceedings before the CAAR. 13. It is relevant to note that the CAAR had also concluded to the effect that even if it was disclosed that there was an on-going investigation by DRI, the same would not be relevant to the outcome of the proceedings. Concededly, no pre-consultation notice or show cause notice had been issued by DRI or any other Authority and it would be erroneous to hold that the question of classification was pending before any Custom officer, Appellate Tribunal or any Court. 14. Section 28-I of the Customs Act provides for the procedure post filing of the application under Section 28H of the Customs Act. Section 28-I is set out below:- "28-I. Procedure on receipt of application - (1) On receipt of an application, the Authority shall cause a copy thereof to be forwarded to the 1 [Principal Commissioner of Customs or Commissioner of Customs] and, if necessary, call upon him to furnish the relevant records : Provided that where any records have been called for by the Authority in any case, such records shall, as soon as possible, be....
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....esent case, DRI had not issued any pre-consultation notice or show cause notice which would indicate that the question regarding classification of any goods was pending before DRI. Thus, even if it is accepted that an officer of DRI is an officer of Customs, it cannot be accepted that the question raised by the respondent in its application under Section 28H of the Customs Act was pending 'in the applicant's case' before DRI. In 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. It is only after this stage that it would be necessary for the officer of customs to render its decision on the question. 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....