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Customs Law on Advance Rulings

INTRODUCTION

AUTHORITY FOR ADVANCE RULINGS -CUSTOMS

Advance rulings enable foreign investors to know in advance into certainty their Customs duty liability on them proposed imports into India and proposed exports from India.
2. Relevant provisions for obtaining an advance ruling are contained in Chapter V-B in the Customs Act, 1962.
  2.1.  The Customs (Advance Rulings) Rules, 2002 notified vide notification Nos. 55/2002-Customs (N.T.) dated 23rd August, 2002 and amended vide notification Nos. 54/2003-Customs (N.T.) dated 23rd July, 2003 and  notification Nos. 21/2007-Customs (N.T.) dated 6th March, 2007 provide for the format to be used for filing an application.
  2.2.  Procedure Regulations of the Authority (AARUL CESTAT) have also been notified vide notification No. 1/2005-AAR dated 7th Jan., 2005.
3. The scheme   of   Advance    Rulings   allows   a   non-resident investor setting up a joint venture in India in collaboration with a non-resident or a resident; or a resident  setting up a joint venture in India in collaboration with a non-resident; or a  wholly owned subsidiary Indian company, of which the holding company is a foreign company; or a joint venture in India; or a resident falling within any such class or category of persons as notified by the Government of India in this   behalf ,  to seek in advance, a ruling from the Authority for Advance Rulings.  
4.  The rulings can be sought in respect of -
  (a)

Classification of goods under the Customs Tariff Act, 1975;

  (b)

Principles of valuation under the Customs Act, 1962;

  (c)

Applicability, of notifications issued in respect of duties under the Customs Act, 1962, Customs Tariff Act, 1975 and any duty chargeable under any other law for the time being in force in the same manner as duty of customs leviable under the Customs Act.  having a bearing on the rate of duty;

  (d)

determination of origin of the goods in terms of the rules notified under the Customs Tariff Act, 1975 and matters relating thereto.

5. The relevant provisions are as follows;-
 

PROVISIONS OF ADVANCE RULINGS IN THE CUSTOMS ACT, 1962

CHAPTER VB OF CUSTOMS ACT, 1962 

ADVANCE RULINGS 

2.(A) Notification on residents as applicants

SECTION 28E Definition:- In this Chapter, unless the context other-wise requires,- 

>(a)activity means import or export and includes any new business of import or export proposed to be undertaken by the existing importer or exporter, as the case may be;

>(b)advance ruling means the determination, by the Authority, of a question of law or fact specified in the application regarding the liability to pay duty in relation to an activity which is proposed to be undertaken, by the applicant;

(c) applicant means

(i) (a) a non-resident setting up a joint venture in India in collaboration with a non-resident or a resident; or

(b)a resident setting up a joint venture in > India in collaboration with a non-resident; or

(c)a wholly owned subsidiary Indian company, of which the holding company is a foreign company, who or which, as the case may be, proposes to undertake any business activity in > India;

(ii) a joint venture in India; or

    (iii)          a resident falling within any such class or category of persons, as the Central Government may, by notification in the Official Gazette, specify in this behalf,and which or who, as the case may be, makes application for advance ruling under sub-section (1) of section 28H;

Explanation. For the purposes of this clause, joint venture in > India means a contractual arrangement whereby two or more persons undertake an economic activity which is subject to joint control and one or more of the participants or partners or equity holders is a non-resident having substantial interest in such arrangement.

(d)application means an application made to the Authority under sub-section (1) of section 28H;

(e)Authority means the [Authority for Advance Rulings (Central Excise, Customs & Service Tax)] constituted under section 28F;

(f)Chairperson means the Chairperson of the Authority;

(g)Member means a Member of the Authority and includes the Chairperson; and

(h)non-resident, Indian company and foreign company have the meanings respectively assigned to them in clauses (30), (26) and (23A) of section 2 of the Income-tax Act, 1961 (43 of 1961).

 

SECTION 28F. Authority for Advance rulings.-

(1)The Central Government shall, by notification in the Official Gazette, constitute an Authority for giving advance rulings, to be called as the Authority for Advance Rulings (Central Excise, Customs & Service Tax).

(2) The Authority shall consist of the following Members appointed by the Central Government, namely :-

(a)a Chairperson, who is a retired Judge of the Supreme Court;

(b)an officer of the Indian Customs and Central Excise Service who is qualified to be a Member of the Board;

(c)an officer of the Indian Legal Service who is, or is qualified to be, an Additional Secretary to the Government of India.

(2A)Notwithstanding anything contained in sub-sections (1) and (2), or any other law for the time being in force, the Central Government may, by notification in the Official Gazette, authorise an Authority constituted under section 245-O of the Income-tax Act, 1961 (43 of 1961), to act as an Authority under this Chapter.

(2B)On and from the date of publication of notification under sub-section (2A), the Authority constituted under sub-section (1) shall not exercise jurisdiction under this Chapter.

(2C)For the purposes of sub-section (2A), the reference to an officer of the Indian Revenue Service who is qualified to be a Member of Central Board of Direct Taxes in clause (b) of sub-section (2) of section 245-O of the Income-tax Act, 1961 (43 of 1961) shall be construed as reference to an officer of the Indian Customs and Central Excise Service who is qualified to be a Member of the Board.

(2D)On and from the date of the authorisation of Authority under sub-section (2A), every application and proceeding pending before the Authority constituted under sub-section (1) shall stand transferred to the Authority so authorised from the stage at which such proceedings stood before the date of such authorisation.

(3)The salaries and allowances payable to, and the terms and conditions of service of, the Members shall be such as the Central Government may by rules determine.

(4)The Central Government shall provide the Authority with such officers and staff as may be necessary for the efficient exercise of the powers of the Authority under this Act.

(5)The office of the Authority shall be located in Delhi.

 

SECTION 28GVacancies, etc., not to invalidate proceedings.- No proceeding before, or pronouncement of advance ruling by, the Authority under this Chapter shall be questioned or shall be invalid on the ground merely of the existence of any vacancy or defect in the constitution of the Authority.

Section 28H. Application for advance ruling.-

(1)An applicant desirous of obtaining an advance ruling under this Chapter may make an application in such form and in such manner as may be prescribed, stating the question on which the advance ruling is sought.

(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 duties under this Act, the Customs Tariff Act, 1975 (51 of 1975) and any duty chargeable under any other law for the time being in force in the same manner as duty of customs leviable under this 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.

(3)The application shall be made in quadruplicate and be accompanied by a fee of two thousand five hundred rupees.

(4)An applicant may withdraw his application within thirty days from the date of the application.

SECTION 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 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 returned to the Commissioner of Customs.

(2)The Authority may, after examining the application and the records called for, by order, either allow or reject the application :

Provided that the Authority shall not allow the application where the question raised in the application is -

(a)already pending in the applicants 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 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, provide an opportunity to the applicant of being heard, either in person or through a duly authorised representative.

Explanation. - For the purposes of this sub-section, authorised representative shall have the meaning assigned to it in sub-section (2) of section 146A.

0>(6)The Authority shall pronounce its advance ruling in writing within ninety days of the receipt of application.

1>(7)A copy of the advance ruling pronounced by the Authority, duly signed by the Members and certified in the prescribed manner shall be sent to the applicant and to the Commissioner of Customs, as soon as may be, after such pronouncement.

SECTION 28J. Applicability of advance ruling.-

(1) The advance ruling pronounced by the Authority under section 28-I shall be binding only -

(a)on the applicant who had sought it;

(b)in respect of any matter referred to in sub-section (2) of section 28H;

(c)on the Commissioner of Customs, and the customs authorities subordinate to him, in respect of the applicant.

3>(2)The advance ruling referred to in sub-section (1) shall be binding as aforesaid unless there is a change in law or facts on the basis of which the advance ruling has been pronounced.

SECTION 28K. Advance ruling to be void in certain circumstances.-

(1)Where the Authority finds, on a representation made to it by the Commissioner of Customs or otherwise, that an advance ruling pronounced by it under sub-section (6) of section 28-I has been obtained by the applicant by fraud or misrepresentation of facts, it may, by order, declare such ruling to be void ab initio and thereupon all the provisions of this Act shall apply (after excluding the period beginning with the date of such advance ruling and ending with the date of order under this sub-section) to the applicant as if such advance ruling had never been made.

(2)A copy of the order made under sub-section (1) shall be sent to the applicant and the Commissioner of Customs.

SECTION 28L: Powers of Authority:- 

(1) The Authority shall, for the purpose of exercising its powers regarding discovery and inspection, enforcing the attendance of any person and examining him on oath, issuing commissions and compelling production of books of account and other records, have all the powers of a civil court under the Code of Civil Procedure, 1908 (5 of 1908).

(2)The Authority shall be deemed to be a civil court for the purposes of section 195, but not for the purposes of Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Authority shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purpose of section 196, of the Indian Penal Code (45 of 1860).

SECTION 28M: Procedure of Authority: -  

The Authority shall, subject to the provisions of this Chapter, have power to regulate its own procedure in all matters arising out of the exercise of its powers under this Act.

Ministry of Finance
(Department of Revenue)

Notification No. 55/2002 - Customs (N.T.) 
New Delhi, the 23rd August, 2002

CUSTOMS (ADVANCE RULINGS)  RULES, 2002 

G.S.R. 593 (E). - In exercise of the powers conferred by  Section 156 read with sub-sections (1) and (3)of section 28H, sub-section (7) of section 28-I of the  Customs Act, 1962 (52 of 1962), the Central Government hereby makes the following rules, namely :

1. Short , extent and commencement. -  
  (1) These rules may be called the Customs (Advance Rulings) Rules, 2002.
  (2) They extend to a whole of India.
  (3) They shall come into force on the date of their publication in the Official Gazette.
2. Definitions- In these rules, unless the context otherwise requires,-
  (a)"Act" means the Customs Act, 1962 (52 of 1962).
  (b) Authority means the Authority for Advance Rulings (Central Excise, Customs and Service Tax) constituted under section 28F of the Customs Act, 1962 (52 of 1962)
  (c) "Form-Application for Advance Rulings (Customs) means the  form annexed to these rules.
  (s) Words and expressions used and not defined herein but defined in the Act, shall have the meanings respectively, assigned to them in the Act
3. Form and manner of application.
  (1) An application for obtaining an advance ruling under sub-section of section 28H of the Act shall be made in Form-Application for Advance Rulings (Customs).  
  (2) The application referred to in sub-rule (1), the verification contained therein and all relevant documents accompanying such application shall be signed,-
  (a) in the case of an individual,  by the individual himself,  or where  the  individual is absent  from  India,  by  the  individual  concerned  or   by   some    person   duly authorized  by  him in  this  behalf;  and   where  the  individual  is a  minor or  is  mentally  incapacitated  from  attending to his affairs,  by his guardian or by any other person competent to act on his   behalf;
  (b) in the case of Hindu undivided family, by the Karta of that family and, where the Karta is absent from India or is mentally incapacitated from attending his affairs, by any other adult member of that family;
  (c) in the case of company or local authority, by the principal  officer thereof authorized by the company or the local authority, as the case may be, for such purpose;
  (d) in the case of a firm, by any partner thereof, not being a  minor;
  (e) in the case of an association, by any member of the association or the principal officer thereof; and
  (f) in the case of any other person, by that the person or some person competent to act on his behalf.
  (3) Every application shall be filed in quadruplicate and shall be accompanied by a fee of two thousand five hundred rupees.
4. Certification of copies of the advance rulings pronounced by the Authority
  A copy of the advance ruling pronounced by the Authority for Advance Rulings and duly signed by the Members to be sent to each of the applicant and to the Commissioner of Customs under sub-section (7) of section 28-I of the Act, shall be certified to be true copy of its original by the Commissioner, Authority for Advance Rulings, or any other officer duly authorized by the Commissioner, Authority for Advance Rulings, as the case may be .

FORM- AAR (CUS-I)

[Application for Advance Ruling (Customs)]

(See rule 3 of the Customs (Advance Rulings) Rules, 2002)

BEFORE THE AUTHORITY FOR ADVANCE RULINGS

(CENTRAL EXCISE, CUSTOMS AND SERVICE TAX)

NEW DELHI

(Form of application for seeking Advance Ruling under section 28H

of the Customs Act, 1962)

Application No.of.

1.

Details of Applicant

 

 

 

(i)      Full name

:

 

(ii)     Complete address      

:

 

(iii)     Telephone number( with STD/ISD code)

:

 

(iv)     Fax  number (with STD/ISD code)

:

 

(v)     E-mail address

:

 

(vi)    Postal address ( to be  provided if different from (ii) above)

:

 

2.

Status of the Applicant(Tick whichever is applicable)

 

 

 

i.                     (i) a non-resident setting up a joint venture in India in collaboration with,-

ii.                   (a) a non-resident; or

iii.                   

(b) with a resident;

:

 

iv.                 (ii)    a resident setting up a joint venture  in India in collaboration with a non-resident;

:

 

v.                   (iii)    a wholly owned subsidiary Indian company, of which the holding company is a foreign company;

:

 

vi.                 (iv)    a joint venture in India;

vii.                 

:

 

viii.            (v) a resident falling within any such class or category of persons, as the Central Government may, by notification in the Official  Gazette, specify in this behalf (mention notification number);

:

 

(vi) Importer/Exporter importing/ exporting any goods from Republic of Singapore under Comprehensive Economic Cooperation Agreement (CECA) dated 29.06.2005.

 

:

 

3.

Basis for claim as a proposed joint venture [ref. 2(i) & (ii) above] (furnish copy of following).

 

 

 

(a)       Memorandum of Understanding; or

 

:

 

(b)   Letter of Intent; or

 

:

 

(c)    Articles of Association etc.; or

 

:

 

(d)   Any other document.

 

:

 

4.

Details of proposed joint venture

 

 

 

(i)      Full name

:

 

(ii)     Complete address      

:

 

(iii)     Telephone number( with STD/ISD code)

:

 

(iv)    Fax  number (with STD/ISD code)

:

 

(v)     E-mail address

:

 

(vi)    Postal address( to be filled if different from (ii)  above)

:

 

5.

Details of resident/non-resident party other than the applicant forming the Joint Venture

 

 

 

(i)      Full name

:

 

(ii)     Complete address      

:

 

(iii)     Telephone number( with STD/ISD code)

:

 

(iv)     Fax number (with STD/ISD code)

:

 

(v)     E-mail address

:

 

(vi)    Postal address( to be filled if  different from (ii)  above)

:

 

6.

In case of a wholly owned Indian Subsidiary Company furnish the following details:-

 

 

A.

(i)     Name of Foreign holding company

:

 

(ii)     Complete address      

:

 

(iii) Telephone number( with STD/ISD code)

:

 

(iv)     Fax number (with STD/ISD code)

:

 

(v)     E-mail address

:

 

(vi)    Postal address( to be provided if  different from (ii) above)

 

:

 

B.

Percentage of Foreign holding in the Indian Subsidiary Company.

:

 

7.

In case of a joint venture [ref. 2(iv) above]

 

 

 

(i)   The persons forming the joint venture/ constitution of joint venture.

:

 

(ii)   Status of constituent persons, i.e. resident/non-resident.

:

 

(iii)  Existing activities if any.

:

 

8.

Nature of activity proposed to be undertaken.

:

 

9.

Present status of activity.

:

 

10.

Importer-Exporter Code number  of the applicant (if any).

:

 

11.

Permanent Account Number (Income Tax) of the applicant (if any).

:

 

12.

Question of Law or fact on which Advance Ruling required (Tick whichever is applicable and provide details against ticked  item):-

 

 

 

(i)   classification of goods under the Customs Tariff Act, 1975;

:

 

(ii)   applicability of a notification issued under sub-section (1) of section 25 of the Customs Act, 1962, having  a bearing on the rate of duty;

:

 

 

 

(iii)   the principles to be adopted for the purposes of determination of value of the goods under the provisions of the Customs Act,1962;

:

 

(iv)   applicability of notification issued in respect of duties under the Customs Act,1962, the Customs Tariff Act, 1975 and any duty chargeable under any other law for the time being in force in the same manner as duty of Customs leviable under the Customs Act;

:

 

 

(v) determination of Origin of goods in terms of the rules notified under the Customs Tariff Act, 1975 and matters relating thereto.

:

 

13.

Statement of relevant facts having a bearing on the question(s) raised.

:

 

14.

Statement containing the applicants interpretation of law and/or facts, as the case may be, in respect of the aforesaid question(s) (i.e. applicants view point and submissions on issues on which the advance ruling is sought).

:

 

15.

Whether the question(s) raised is pending in the applicants case before any officer of Customs, Appellate Tribunal or any Court of Law? If so, provide relevant details.

:

 

16.

Whether a similar matter as raised in the question(s) by the applicant has already been decided by the Appellate Tribunal or any Court?

:

 

17.

Concerned Commissioner of Customs i.e. from where import/export is proposed to be undertaken.

:

 

18.

List of documents/statement attached, (attach the list on a separate sheet, if necessary.

:

 

19.

Particulars of demand draft enclosed with the application

:

 

                                                                                                 

                                                                                                    

                                                                                                       (Applicants signature)

VERIFICATION

 

            I, _____________________(name in full and in block letters), son/daughter/wife of ___________________ do hereby solemnly declare that to the best of my knowledge and belief information and statements furnished in above format and in the annexure(s) thereto including the documents enclosed are correct.  I am making this application in my capacity as ___________________ (designation). I am competent to make and verify this application.  

 

2.         I also declare that the question (s) on which the advance ruling is sought is/are not pending in my case before any Customs Authority, Appellate Tribunal or any Court. 

 

3.         Verified this.day..of.200   at .

 

(Applicants signature)

 ANNEXURE I

 

Statement of relevant facts having a bearing on the question(s) on which advance ruling is required  

 

Place ..  

Date

(Applicants signature)  

 

ANNEXURE II

 

Statement containing applicant"s interpretation of law and/or facts, as the case may be, in respect of the questions(s) on which advance ruling is required  

 

Place ..

Date

(Applicants signature) 

 

Notes:

1.

The application must be filled in English or Hindi, in quadruplicate.

2.

The application must be accompanied by an account payee demand draft of Indian Rupees two thousand five hundred drawn in favour of Authority for Advance Rulings(Central Excise, Customs & Service Tax), payable at New Delhi.  Particulars of the draft should be entered in the column pertaining to item number 19.

3. The number and year of receipt of the application will be filled in by the office of the Authority for Advance Rulings.
4.

If the space provided for answering any item in the application is found insufficient, separate sheets may be used for this purpose. Each sheet must be signed at the bottom by the applicant.

5.

In reply to item number 2 the applicant must state its status i.e. whether an individual, Hindu undivided family firm, company, firm association of persons, wholly owned subsidiary, Joint Venture or any other person.

6.

For item number 5, the reply must be given in the context of the provisions regarding "residence" in India, non resident, Indian Company, and  Foreign Company as per the Income Tax Act, 1961(43 of 1961).

7.

In reply to item number 9, the applicant must state the present status of the business activity in respect of which advance ruling has been sought i.e. the stage to which it has progressed.

8.

Regarding item number 12, the question(s) should be based on the activity proposed to be under taken; hypothetical questions will not be entertained.

9.

In respect of item number 13, the applicant must state in detail the relevant facts and also disclose the nature of his activity and the likely date and purpose of the proposed activity(s).  Relevant facts reflected in document submitted along with the application must be included in the statement of facts and not merely incorporated by reference.

10.

For item number 14, the applicant must clearly state his interpretation of law or facts in respect of the question(s) on which the advance ruling is being sought.

11.

The application, the verification appended thereto, the Annexures to the application and the statements and documents accompanying the Annexures 1 and 2 must be signed on each page by the applicant.