Authority For Advance
Rulings
(Customs, Central Excise
& Service Tax) Procedure Regulations, 2005
[Notification No. 01/2005 - AAR, dated 07/01/2005
amended by Notification No. 01/2007 - AAR, dated
16/07/2007]
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, -
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(a)
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"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;
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(b)
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"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;
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(c)
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"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;
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(d)
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"authorized
representative", -
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(i)
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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;
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(ii)
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in
relation to a Commissioner, means a person -
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(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;
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(e)
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"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;
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(f)
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"Chairperson"
means the Chairperson of the Authority;
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(g)
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"Commissioner", in respect of an
application, means -
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(i)
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the
Commissioner of Customs or the Commissioner of Central Excise, as the case
may be, specified in the application; or
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(ii)
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the
Commissioner designated by the Chairman of the Central Board of Excise and
Customs in respect of the application ;
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(h)
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"Member"
means a Member of the Authority and includes the Chairperson;
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(i)
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"petition"
means any petition of interlocutory, incidental or ancillary nature or
representation filed in a pending or disposed of application;
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(j)
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"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;
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(k)
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"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;
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(l)
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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.
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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 -
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(a)
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have
custody of the records and the official seal of the Authority;
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(b)
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receive
all applications and petitions filed before the Authority;
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(c)
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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;
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(d)
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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;
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(e)
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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;
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(f)
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issue
notices or other processes, as may be ordered by the Authority;
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(g)
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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;
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(h)
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requisition
records from the custody of any person, on the orders of the Authority;
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(i)
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return
original records to the person from whose custody they were requisitioned;
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(j)
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allow inspection
of the records of the Authority;
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(k)
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carry
out any amendment of the records of the Authority to conform to its
directions ;
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(l)
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grant to
the parties to the application/petition certified copies of the orders/advance
rulings and documents filed in the proceedings before the Authority;
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(m)
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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
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(n)
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discharge any other function
as may be assigned by the Authority by special or general order.
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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 -
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(a)
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his postal and e-mail address abroad;
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(b)
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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.
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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 ten 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 therefor 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. Declaration
of advance ruling to be void in certain circumstances.- (1) 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 -
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(a)
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informing him of the grounds on which it is
proposed to declare the advance ruling as void ab
initio;
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(b)
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enclosing copies of the documents, if any,
sought to be relied upon;
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(c)
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giving an opportunity of making a
representation in writing within such reasonable time as may be specified in
the notice against the grounds for declaring the advance ruling void ab initio; and
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(d)
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giving a reasonable
opportunity of being heard in person or through an authorized representative
in the matter.
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(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.
(5) Where the Authority finds that the
advance ruling was obtained by the applicant by fraud or misrepresentation of
facts, the same shall be declared void ab initio.
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.
(2) A certified copy each of order/advance ruling of the Authority shall
be communicated to the applicant and the Commissioner under the signature of the
Secretary or another officer of the Authority authorized by the Secretary in
this behalf 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.
(2) Subject to the provisions of sub-Regulation (3), in case there
is difference of opinion among the Members hearing an application, the opinion
of the majority of Members shall prevail and order/advance ruling of the
Authority shall be expressed in terms of the view of the majority but any
Member dissenting from the majority view may record his reasons separately.
(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.
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