ORDER
Shri S. S. Sekhon
1. This appeal has been filed by Revenue. The respondent importers vide Bill of Entry dated 4.7.97 had applied for clearance of “dry wipe marking ink” which was classified under Custom Tariff Heading 3215.90 and CVD assessed. Its samples were drawn tested by the Custom House which reported that the subject goods under import were form marker/writing ink for marking. The Commissioner (Appeals) vide his order observed “since the lower authoritys’ order had relied on the HSN Notes and since difference Is aligned to the HSN and prima facie there was no case in applicant’s favour, directed the applicant to deposit the demanded amount of Rs. 3,07,277/- and report compliance by 6.12.99. Since pre deposit was a mandatory requirement on appeal, therefore he rejected the appeal for non compliance thereof under provision of Section 129E of the Customs Act. Against this Order-in-Appeal before CEGAT, CEGAT has aside impugned order and remanded the matter back to the Commissioner (Appeals) to take up the stay application afresh and consider all the pleas raised by the appellants. The Commissioner (Appeals) vide Order dated 17.7.2000 in the de novo proceedings ordered the classification of the subject under Central Excise Tariff Act 1985 heading 3215.10 as “writing ink” with Nil CVD and allowed the appeal.
2. Revenue has taken the following grounds in appeal:-
a) Commissioner (Appeals) has failed to appreciate the Supreme Court decision in the case of Woodcraft Products [1995 (77) ELT 23/SC.] wherein it was held that HSN Notes are relevant for classification of the goods under Central Excise Tariff.
b) A reading of CET 35.12 would indicate that except for writing inks, all ‘other types of ink were classifiable under heading 3215.50 (SIC) it should be read as 3215.90;
c) Importers had declared the goods as marking ink and not as writing ink, it is not understood ordinarily as writing ink by the importer and the Commissioner (Appeals) deciding the classification by relying on the Custom Lab opinion was not called for.
3. We have heard S. Arumugam, Ld. JDR for the Revenue who submits that the CET 3215 is very clear and explicit and differentiates inks into two categories, viz. “writing inks” and “others”. Since the product under import itself is not described as writing ink, by the importers themselves and there is no evidence its commonly understood meaning as a writing ink, it cannot be classified as a writing ink. He drew our attention to HSN Notes for ‘other inks’ which specifically include ‘marking inks’ thereunder. He also relies on the decision of CCE New Delhi Vs. Technik Industries [2000 (120) ELT 123-Trib.] wherein marking inks and ‘highlighter inks’ have been determined to be falling under Sub Heading 3215.90 of CETA 1985.
4. Ld. Advocate Shri Saravanan appearing for the respondents submits that once the Custom House laboratory itself has given opinion that the product under import is a writing ink, it cannot be called and classified anything other than a writing ink. He further submits that the HSH Notes against the words “marking inks” specify “e.g. based on Silver Nitrate”. Their product does not have any Silver Nitrate. He also demonstrated the use of marker ink, filled in marking pens, used on ‘white-boards’ and submitted that the end use of the ink as demonstrated would indicate that it does not leave any permanent mark on such white-boards. However, he fairly concedes the ink itself leaves a permanent mark on paper and with the same marking pen it can be used on paper for purposes of writing the desired marks. He submits that the HSN Notes are not applicable since CETA 1985 is not aligned to HSN in as much as, it is different ‘writing inks’ and ‘others’. While HSN is differentiating ‘printing ink’ and ‘other’ inks. Therefore, the Supreme Court decision is not applicable when the CETA 1985 heading 3215 has not been aligned as per HSN. He also referred to and read out the Supreme Court in the case of Woodcraft Products. He also read out the decision in the case of the 2000 (120) ELT 123 and tried to differentiate, that ‘marker ink’ therein while, “Marking ink” under import are of different kind.
5. We have carefully considered the material and the submissions made and after considering the same, we find
(a) The product under import is admittedly a marker pen ink. The fact that the marks made by such ink pens can be easily rubbed out when applied on “white boards” and will not get rubbed out leaving a permanent mark on paper, will not disentitle the same from the classification under 3215.90 of Central Excise Tariff Act 1985.
(b) For the purpose of CVD, we have to classify the products as per CETA 1985. The CETA classifies all inks, between a heading for ‘writing inks’ and other inks. No material has ben produced before us to indicate the ink is a ‘writing ink’ commonly and ordinarily understood by the persons dealing with it. We find that the evidence on record is, that the ink is not understood as ‘writing-ink’ but is understood only as a ‘marker ink’ would induce us to confirm that its classification as writing ink under had 32.15.10 of CETA 1985 cannot be effected.
(c) We find substance in the submission of the Ld. Advocate that CETA 1985 is not fully aligned with the HSN and therefore, the HSN notes may not be relevant and are not binding. However, a perusal of the HSN notes, reveal that ‘marking ink’ “(e.g. based on silver nitrate)” are listed as known to people who deal with such products, in the commercial world and trust classifications, to be ‘other-inks’ falling under Heading of “Printing Ink, writing or drawing ink and other inks.’ Therefore, we find HSN notes to be relevant to establish how the product is understood in the commercial and commodity taxation world. We find that the marking ink were containing silver nitrate or not would be understood as ‘other-inks’ by such person, who are commercially dealing with it and also for commodity taxation purposes. Therefore, we have no hesitation to determine the ‘maker ink’ under import to be classified under the heading “others” under heading 3215.90 of Central Excise Tariff Act, 1985.
6. In this view of our findings, the Revenue’s appeal has to be allowed. The Order-in-Original is restored. Ordered accordingly.
(Pronounced & dictated in open court)