AUTHORITY
FOR ADVANCE RULINGS (CENTRAL EXCISE, CUSTOMS AND SERVICE TAX) PROCEDURE REGULATIONS, 2005
[M.F.
(D.R.) Notification No. 1/2005-AAR, dated 7-1-2005 as amended]
In exercise of the powers conferred by
section 28M of the Customs Act, 1962 (52 of 1962), section 23H of the Central
Excise Act, 1944 (1 of 1944) and section 96H of the Finance Act, 1994 (32 of
1994) and in supersession of the Authority for Advance
Rulings (Procedural) Rules, 2003, except as respects things done or
omitted to be done before such supersession, the Authority for Advance Rulings (Customs, Central Excise and Service
Tax) hereby makes the following regulations to regulate its own procedure in
all matters arising out of the exercise
of its powers under the said Acts, namely :-
REGULATION 1.Short title and commencement. (1) These
regulations may be called the [Authority for Advance
Rulings (Central Excise, Customs and Service Tax)] Procedure
Regulations, 2005 [“AARUL (CEST) Procedure Regulations”].
(2)They shall come into force on the 26th
January, 2005.
REGULATION 2.
Definitions. In these
regulations, unless the context otherwise requires, -
(a) “advance ruling” means an advance ruling as defined in
clause (b) of section 28E of the Customs Act, 1962 (52 of 1962) (hereinafter referred
to as the Customs Act) or clause (b) of section 23A of the Central Excise Act,
1944 (1 of 1944) (hereinafter referred to as the Central Excise Act) or clause
(a) of section 96A in Chapter VA of the Finance Act, 1994 (32 of 1994) (Chapters V and VA of the said Act referred
to herein as the Service Tax Provisions), as the case may be;
(b) “applicant”
means an applicant as defined in clause (c) of section 28E of the Customs Act
or clause (c) of section 23A of the Central Excise Act or clause (b) of section 96A of the Service Tax
Provisions, as the case may be;
(c) “application”
means an application under sub-section (1) of section 28H of the Customs Act or sub-section (1) of section 23C
of the Central Excise Act or sub-section (1) of section 96C of the Service Tax
Provisions, as the case may be;
(d) “authorized representative”, -
(i) in
relation to an applicant means an authorized representative as defined in
sub-section (2) of section 146A of the Customs Act or sub-section (2) of section
35Q of the Central Excise Act or referred to in sub-section (5) of section 96D
of the Service Tax Provisions, as the case may be;
(ii) in relation to a
Commissioner, means a person -
(A) authorized in writing by the Commissioner to
act as an authorized representative; or
(B) appointed by the Central Government as
authorized representative or authorized by the Central Board of Excise and
Customs to appear, plead and act for the Commissioner in any proceeding before
the Authority;
(e) “Authority”
means the Authority for Advance Rulings
constituted under section 28F of the Customs Act and referred to in clause (e)
of section 23A of the Central Excise Act and clause (d) of section 96A of the
Service Tax Provisions;
(f) “Chairperson” means the Chairperson of
the Authority;
(g) “Commissioner”, in respect of an
application, means -
(i) the
Commissioner of Customs or the Commissioner
of Central Excise, as the case may be, specified in the application; or
(ii) the
Commissioner designated by the Chairman of the Central Board of Excise and
Customs in respect of the application ;
(h) “Member” means a Member of the Authority
and includes the Chairperson;
(i) “petition”
means any petition of interlocutory, incidental or ancillary nature or representation
filed in a pending or disposed of application;
(j) “Rules”
means the Customs (Advance Rulings) Rules, 2002 or
the Central Excise (Advance Rulings) Rules, 2002
or the Service Tax (Advance Rulings) Rules, 2003,
as the case may be;
(k) “Secretary”
means a Commissioner of Customs or Commissioner of Central Excise designated as
Secretary by the Authority and includes an Additional Commissioner or a Joint
Commissioner of Customs or of Central Excise, so designated; Provided that in case no officer
of the rank of Commissioner of Customs or the Commissioner of Central Excise
has been designated, on account of lack of sanction of post or otherwise, the
Secretary of the Authority for Advance Rulings constituted under Section 245-O
of the Income-tax Act, 1961 (43 of 1961) may be so designated by the Authority.
(l) words
and expressions used and not defined herein but defined in the Customs Act or
the Central Excise Act or the Service Tax Provisions, as the case may be, shall
have the meanings respectively assigned to them in that enactment.
REGULATION
3. Language of the Authority. (1)The language of the Authority shall be
Hindi/English.
(2)
Where any document is in a language
other than Hindi or English, a Hindi/English translation thereof duly attested
shall be filed along with the original document.
REGULATION
4. Powers of the
Authority.
(1) The Authority shall have the power to hear and determine all applications
and petitions.
(2)
The Authority may, if any
difficulty arises in giving effect to its order/advance
ruling, either suo motu or on a petition made by the applicant or
the Commissioner within a period of three months of noticing the difficulty, by
appropriate order remove such difficulty, and pass such other order as it
considers just and necessary in the circumstances of the case.
(3)
The Authority may reopen the hearing of any case, before pronouncement of its
order/advance ruling, for sufficient cause.
(4) The Authority may, in an appropriate case,
direct -
(i) examination of any records and submission
of report;
(ii) conduct
of any technical, scientific or market enquiry of any goods or services and
submission of report and may also call for reports from experts and order such
further investigation as may be necessary for effectual disposal of the
application.
(5) The Authority shall have all the powers
of a civil court in regard to the following matters, namely :-
(i) discovery and inspection;
(ii) enforcing the attendance of any person and
examining him on oath;
(iii) issuing commissions; and
(iv) compelling production of books of account
and other records.
REGULATION 5. Powers and
functions of the Secretary. (1) The Secretary shall be in overall charge of
the office of the Authority and shall function under direct supervision of the
Chairperson.
(2)
The Secretary shall -
(a) have
custody of the records and the official seal of the Authority;
(b) receive
all applications and petitions filed before the Authority;
(c) scrutinize
applications and petitions and point out omissions and defects in the
application/petition and require the applicant/petitioner to make good the
omissions or remove the defects within the time granted by the Secretary and in
case of non-compliance place such application/petition before the Authority for
appropriate orders;
(d) forward
a copy of the application along with its
enclosures to the Commissioner to transmit records of the case, if any, and to
offer his comments on the application;
(e) place
all the applications before the Authority for appropriate orders under
sub-section (2) of section 28-I of the Customs Act or sub-section (2) of
section 23D of the Central Excise Act or
sub-section (2) of section 96D of the Service Tax Provisions, as the case may be;
(f) issue
notices or other processes, as may be ordered by the Authority;
(g) verify
service of notices or other processes on the parties to the
application/petition and obtain necessary orders of the Chairperson in case of
defective service;
(h) requisition
records from the custody of any person, on the orders of the Authority;
(i) return
original records to the person from whose custody they were requisitioned;
(j) allow
inspection of the records of the Authority;
(k) carry
out any amendment of the records of the Authority to conform to its directions ;
(l) grant
to the parties to the application/petition certified copies of the orders/advance rulings and documents filed in the proceedings
before the Authority;
(m) preserve
records of every application/petition and other materials for a period of five
years from the date of disposal of the application and to weed out/destroy the
same thereafter unless otherwise directed by the Authority; and
(n) discharge
any other function as may be assigned by the Authority by special or general
order.
REGULATION 6. Signing of
notices, etc. (1) Every requisition, direction, letter, authorization, or
notice to be issued on behalf of the Authority, shall be signed by the
Secretary or by any other officer authorized by him.
(2) Nothing contained in sub-regulation (1) shall
apply to any direction which the Authority may issue to an applicant or a
Commissioner or an authorized representative present during the course of the
hearing.
REGULATION 7. Mode of service of notices,
etc.
(1) The service of every notice or other document required to be served on or delivered to, any
person in compliance with the orders of the Authority shall be in the manner
specified hereunder.
(2) The service of notice or document shall
be made by hand delivery or by registered post with acknowledgement due or by
speed post or by courier service or by any other means of transmission of
documents including e-mail/fax.
(3) Notices or documents required to be
served on the parties to the application/petition shall be deemed to have been
served, if delivered at the address indicated in the application/petition and
in the case of a Commissioner at the Office of the Commissioner.
REGULATION 8. Procedure for filing
applications.
(1) Every application filed
before the Authority shall be in the prescribed form, that is it to say, Form -
AAR (CUS) of the Customs (Advance Rulings) Rules,
2002 or Form - AAR (CE) of the Central Excise (Advance
Rulings) Rules, 2002 or Form - AAR (ST) of the Service Tax (Advance Rulings) Rules, 2003, as the case may be.
(2) The application
shall be filed in quadruplicate and presented by the applicant in person or by
an authorized representative to the Secretary or any other officer authorized
by the Secretary in this behalf or sent
by registered post or by courier service or by speed post addressed to the
Secretary along with a fee of two thousand five hundred Indian Rupees in the
form of demand draft drawn in favour of [“Authority for Advance
Rulings (Central Excise, Customs and Service Tax)”] payable at New
Delhi.
(3) Applications for advance ruling shall be received between 10:00 a.m. and
1:00 p.m. and between 2:00 p.m. and 5:00 p.m. on any working day.
(4) Every application,
its verification,
annexures, statements and supporting documents shall be signed in the manner
set out in the Rules.
(5) The application
shall be accompanied by evidence that the person who has signed the
application, verification and other documents is authorized/competent to sign
under the Rules.
(6) Every
application, its verification, annexures, statements and supporting documents
shall be on A-4 size paper and should be neatly and legibly written, typed or
printed leaving a left margin of 5 cms. and only on one side of a page in
double-line spacing.
(7) An application
under sub-regulation (1) shall be deemed to have been filed on the date on
which it is received in the office of the Authority.
(8) If the applicant
is not based in India, he shall, inter alia, indicate in a separate
annexure to the application -
(a) his
postal and e-mail address abroad;
(b) the
name and address including e-mail address of his representative in India, if
any, authorized to act on his behalf and to receive notices or other documents
sent by the Authority.
REGULATION 9. Procedure on receipt of an
application.
(1) The officer receiving the application shall put his initials and the stamp of the
Authority thereon together with the date and time of receipt thereof and shall
also acknowledge its receipt and he shall also enter the particulars of the
application in the register of daily filing, maintained for that purpose.
(2) The application shall be scrutinized by
the officer authorized by the Secretary for that purpose for any
deficiency/defect and any deficiency/defect noticed in the application or
annexures thereof shall be communicated to the applicant [as for as possible within
10 working days from the date of receipt of the application.]
(3) The applicant shall be required to
rectify the deficiency/defect within the time granted by the Secretary and such
application shall be deemed to have been received on the date when it is
re-submitted after removal of such deficiency/defect, for the purposes of
sub-section (6) of section 28-I of the Customs Act or sub-section (6) of
section 23D of the Central Excise Act or sub-section (6) of section 96D of the
Service Tax Provisions, as the case may be.
(4) Date of receipt of an application free
from any defect or deficiency in the secretariat of the Authority shall be
deemed to be the date of the application for the purposes of sub-section (4) of
section 28H of the Customs Act or sub-section (4) of section 23C of the Central
Excise Act or sub-section (4) of section 96C of the Service Tax Provisions.
(5) When an application is free from any
defect/deficiency, an endorsement “examined and registered” shall be made
thereon and a serial number allotted thereto.
(6) In case the defect/deficiency is not
removed/made good within
the time granted under sub-regulation (3), the application shall be placed
before the Authority for appropriate orders.
(7) On allotment of serial number to an
application under sub-regulation (5), a copy of the application shall be
forwarded to the concerned Commissioner of Customs/Central Excise for
furnishing relevant records with comments, if any.
(8) On receipt of the relevant
records/comments from the concerned
Commissioner under sub-regulation (7) or after expiry of two weeks or such
further period as may be allowed by the Authority, the application shall be
placed before the Authority for passing orders in terms of sub-section (2) of
section 28-I of the Customs Act or sub-section (2) of section 23D of the
Central Excise Act or sub-section (2) of section 96D of the Service Tax
Provisions, as the case may be.
(9) In a case where the Authority considers
that prima facie the application is
liable for rejection, a notice shall be issued to the applicant indicating the
reasons therefore together with the comments, if any, of concerned
Commissioner, giving an opportunity to the applicant of being heard in person or
through an authorized representative and a copy of the notice shall be endorsed
to the concerned Commissioner.
(10) On the date fixed for hearing or such
other date to which the case is
adjourned, the Authority may pass an order either allowing or rejecting the
application under sub-section (2) of section 28-I of the Customs Act or
sub-section (2) of section 23D of the Central Excise Act or sub-section (2) of
section 96D of the Service Tax Provisions, as the case may be, and a copy of
the order passed by the Authority shall be sent to the applicant and the
concerned Commissioner.
(11) Where an application is allowed, the
comments of the concerned Commissioner and further material, if any, shall
accompany a copy of the order sent to the applicant drawing his attention to
the statutory provisions that he has a right to be heard, if he so desires,
before pronouncement of advance ruling and the
response of the applicant should reach the Authority within two weeks of
receipt of the copy of the order.
(12) Hearing of the application shall
normally be held between 11:00 a.m.
and 5:00 p.m. on a working day in the court-room of the Authority or an
alternative place fixed by the Authority.
(13) In the absence of request for personal
hearing from the applicant, advance ruling shall
be pronounced after hearing the concerned Commissioner or his authorized
representative, if present, on the date of hearing and on the basis of records
available with the Authority.
(14) Where the Authority
reserves an application for consideration, the advance
ruling or such other order as the Authority may deem fit shall be
pronounced in the open court under intimation to the applicant and the
concerned Commissioner and a copy of the advance ruling/order
shall be served upon the parties to the application.
REGULATION 10. Commissioner to be
designated by the Board. Where in an application
there is no Commissioner specified by the applicant, a copy of the
application and enclosures thereto shall be forwarded by the Authority to the
Chairman of the Central Board of Excise and
Customs calling upon him to designate, within such period as may be fixed
by the Authority, a Commissioner for the purposes of the application, failing
which the application shall be proceeded with in the absence of a Commissioner.
REGULATION 11. Additional facts by
way of a petition. (1)
The Authority may, at its discretion, either suo motu or on a petition
made to this effect by a party to the application, permit or require the
applicant or the Commissioner to submit such additional facts as may be necessary
to enable it to pronounce its advance ruling.
(2) The additional facts sought to be brought
on record, by the petitioner shall be supported by necessary documents, if any,
duly verified.
REGULATION 12. Questions not
specified in the application. (1) The applicant shall not, except with the
leave of the Authority, urge or be heard in respect of any question other than
the question specified in the application but in pronouncing an advance ruling on the question set forth in the
application, the Authority may at its discretion consider such other aspects as
may be necessary to pronounce the advance ruling
on the question specified in the application.
(2) On a petition made by an applicant, the
Authority may permit amendment of a question, in appropriate cases.
REGULATION 13. Authorization to be
filed. (1)
An authorized representative appearing for the applicant/Commissioner
shall before the commencement of the
hearing, file before the Secretary, a document authorizing him to appear for
the applicant/Commissioner.
(2) Every authorized representative appearing
on behalf of the applicant/Commissioner shall notify to the Secretary the
address of his office, before the commencement of the hearing.
(3) Any change of an authorized
representative shall be intimated by the concerned party to the Secretary as
well as to the other party to the application.
(4) No person other than an applicant or the
concerned Commissioner or their
authorized representative, shall be heard in person save by special leave of
the Authority.
REGULATION 14. Continuation of
proceedings after the death, etc., of the applicant. Where the applicant, being an individual,
dies, or being a company or association of persons, whether incorporated or
not, is wound up or dissolved or disrupted or amalgamated or succeeded to by
any other person or otherwise comes to an end, the application shall not abate
and the proceedings in the application may be continued by the executor,
administrator, liquidator, receiver or assignee or other legal representative
of the applicant, as the case may be, on a petition made in this behalf, if the
Authority considers that the circumstances so justify.
REGULATION 15.
Hearing of application. (1) On
the day fixed for hearing or any other day to which the case is adjourned, the
Authority shall hear the applicant or his authorized representative in cases
where it is proposed to reject the application or where the applicant seeks an
opportunity of being heard; the Authority may also hear the Commissioner or his
authorized representative, if it considers it necessary, before pronouncing its
advance ruling.
(2) In an appropriate case, the Authority may
call upon any person to depose or to supply such material/document, as it may
consider necessary to arrive at a decision.
(3) The Authority may, in an appropriate case
where an important question of law arises, issue notice to a Law Officer of the
Central Government including the Attorney General and Solicitor General to
assist the Authority in the matter.
(4) It will also be open to the Authority to
appoint an advocate as amicus
curie to assist the Authority in an application.
(5) The Authority may, on such conditions as
the circumstances of the
case require, adjourn the hearing of the application.
REGULATION 16. Hearing of
application ex parte. Where
on the day fixed for hearing or any other day to which the case is adjourned,
the applicant or the Commissioner does not appear in person or through an
authorized representative when the application is called for hearing, the
Authority may dispose of the application ex parte on merits :
Provided that
where an application has been disposed of
under this regulation and the
applicant or the Commissioner, as the case may be, applies within seven days of
receipt of a copy of the order/advance ruling and the Authority is satisfied that there was
sufficient cause for his non-appearance when the application was called for
hearing, the Authority may, after allowing the opposite party a reasonable
opportunity of being heard, make an order setting aside the ex parte order/advance ruling and restore the application for fresh
hearing.
REGULATION 17.Withdrawal of application. The applicant may
withdraw his application within thirty
days from the date of such application and thereafter only with the leave of
the Authority.
REGULATION 18.
Modification of the order/advance ruling. The Authority may suo motu or on a
petition by the applicant or the Commissioner, but before pronouncement of an advance ruling or before an advance ruling pronounced
has been given effect to, on being satisfied that an order/advance ruling was pronounced under mistake of law or
fact, modify such order/advance ruling in such
respects as it considers appropriate, after allowing the applicant and the
Commissioner a reasonable opportunity of being heard.
REGULATION 19.
Rectification of mistakes.
(1) The Authority may, with a view to rectifying any mistake apparent from the
record, amend any advance ruling pronounced by it
before such ruling has been given effect to.
(2) Such amendment may be made suo motu or when the mistake
is brought to the notice of the Authority by the applicant or the Commissioner,
but only after allowing the applicant and the Commissioner a reasonable
opportunity of being heard.
REGULATION 20. Amendment of the records. If at any stage of
the proceedings it is brought to the notice of the Authority that there is any factual or
material error in the records, the Authority
may permit amendment of the records after hearing the applicant and the
Commissioner.
REGULATION 21. Supply
of certified copies. The Secretary may
grant certified copies of documents,
orders or advance rulings to the applicant or the Commissioner on a
written request.
REGULATION 22. Inspection of records. (1) The applicant or
the Commissioner or his authorized representative may be allowed to inspect the
records of an application/petition on making a written request to the Secretary
subject to the condition that only those documents shall be made available for
inspection that are relied upon in the proceedings before the Authority.
(2) Inspection shall be allowed only in the
presence of an officer of the
Authority and taking of notes and not copies of the documents shall be
permitted.
REGULATION 23.
(1) Declaration of advance ruling to be void in certain circumstances. Where
it is brought to the notice of the Authority on a representation made by the
Commissioner or otherwise that an advance ruling
pronounced by it has been obtained by the applicant by fraud or
misrepresentation of facts, the matter shall be examined by the Authority and
any such representation shall be supported by an affidavit duly attested and
accompanied with attested copies of documents relied upon.
(2) If the Authority
after examining the
representation is prima facie of the view that the advance ruling appears to have been obtained by the
applicant by fraud or misrepresentation of facts, the applicant shall be given
a notice to explain as to why the ruling should not be declared void ab
initio under sub-section (1) of section 28K of the Customs Act or
sub-section (1) of section 23F of the Central Excise Act or sub-section (1) of
section 96F of the Service Tax Provisions, as the case may be.
(3) Such notice to the applicant shall be in
writing -
(b) enclosing copies of the documents, if any,
sought to be relied upon;
(d) giving
a reasonable opportunity of being heard in person or through an authorized
representative in the matter.
(4) A copy of the notice with enclosures
shall also be forwarded to the Commissioner for comments, if any, and a
reasonable opportunity shall also be allowed to the Commissioner or his
authorized representative of being heard before passing any order.
REGULATION 24.
Proceedings open to the public. Proceedings before the
Authority shall be open to the public and where the applicant/Commissioner so
requests the Authority may order in a given case that no person other than the
applicant, the Commissioner or their authorized representatives shall remain
present during such proceedings.
REGULATION 25.Publication
of orders/advance rulings. Such
of the orders/advance rulings of the Authority, as
the Chairperson deems fit for publication in any authoritative report or the
press, may be released for such publication on such terms and conditions as the
Chairperson may specify.
REGULATION 26.
Authentication and communication
of orders/advance rulings. (1)
Every order/advance ruling of the Authority shall
be duly signed by the Chairperson and the Members of the Authority pronouncing
the order/advance ruling and bear the official
seal of the Authority.
REGULATION 27. Proceedings of Authority. (1) When one or both
of the Members of the Authority other than the Chairperson is unable to
discharge his functions owing to absence, illness or any other cause or in the
event of occurrence of any vacancy or vacancies in the office of the Members,
the Chairperson alone or the Chairperson and the remaining Member may function
as the Authority.
(3) Where the Chairperson and one other
Member hear a case under
sub-regulation (1) and are divided in their opinion, the opinion of the
Chairperson shall prevail.
REGULATION 28. Procedure in case of petition.
The
provisions contained in these regulations for hearing and disposal of an
application shall apply, mutatis mutandis, to the hearing and disposal
of all petitions before the Authority.
REGULATION 29. Dress regulation. (1) An authorized
representative shall appear before the Authority in dress prescribed for the
members of his profession by the competent professional body, if any.
(2) All other persons appearing before the
Authority shall be properly dressed.
REGULATION 30. Prohibition of arms, mobile
phones etc.
No person shall be allowed to bring mobile phones, sticks, arms or other
weapons in the room where the Authority conducts the proceedings.