ORDER
K. Prakash Anand, Vice-President
1. Heard Shri Vineet Kumar, SDR for the department and Shri N.C. Sogani/consultant for the respondent.
2. We felt that this was a matter in which it was necessary for us to see the impugned goods and the related technical literature. Accordingly, the department was asked to produce samples as well as catalogue, which we have seen in the course of the arguments.
2A. The Collector (Appeals) has held that the goods in question cannot be considered consumer goods and has, therefore, set aside the orders of confiscation of the lower authority for importing the goods without a valid import licence in contravention of Section 3 of the Import (Control) Order, 1955 read with Sub-section (2) of Section 3 of the Import and Export (Control) Act, 1947 (as amended) attracting provisions of Section 11 of the Customs Act, 1962. The Collector (Appeals) has taken the view that the impugned goods cannot be strictly considered to be stationery articles such as writing pens etc. and that the alternative classification under Chapter 90 which deals with mathematical drawing pens, appears to be more appropriate. He has classified the goods under Item 90.16(1)-CTA. The learned consultant has emphasized the same point before us. He refers to note 1(d) of chapter 98 and submits that classification under chapter 98 has to be ruled out He further stresses that heading 90.16-cta would include mathemarical as well as other drawing pens.
3. The learned SDR has strongly reiterated the views of the department contained in their appeal before us and has nothing further to add.
4. We have observed that in the catalogue, the goods are described as drawing/writing pen points or mapping pen points. They are also so invoiced, as the invoice gives relevant code number of the catalogue. As rightly discussed by the Deputy Collector hi the order-in-original, and as now borne out in demonstration before us, the nibs require to be inserted into a holder and then the pen is held by the hand for drawing sketches. In view of this position, we are inclined to believe that the item is essentially a sketching pen.
5. There are two alternative headings to be considered, namely headings 90.16 and 98.03/09. Heading 98.03/09 is for pens and pencils of all sorts and parts thereof. On the other hand, heading 90.16 is for drawings, marking out and mathematical calculating instruments, drafting machines, partographs, slide rules, disc calculators etc. It is hardly shown before us that the impugned goods are part of any instruments.
6. On the other hand, from the department side, it is rightly emphasized that heading 98.04-CCCN covers pea nibs, with or without nib points of any design, including those meant for writing, drawing, lithography or music writing. In this analysis also, the appropriate classification would be heading 98.03/09 of the Customs Tariff.
7. We are also inclined to accept that of the two alternatives, heading 98.03/09 appears to be more specific and, therefore, is to be preferred as per Rule 3 of the Rules of Interpretation of the Customs Tariff they were not adequately dealt with in his order in which he has held that the goods would be classifiable under Item 90.16-CTA. His order, which is cryptic, relies essentially on the argument that Chapter 98 stands for stationery articles and that the impugned goods cannot be considered as stationery articles of the nature of writing pens etc. This argument is fallacious and has to be rejected. We quite agree that the articles imported are essentially pen nibs, which are covered by heading 98.04-CCCN (98.03/09-CTA) which would cover pen nibs with or without nib points of any design, whether for writing, drawing, lithography or music writing. The respondents have not been able to convince us that the impugned goods can be classifiable as parts of drawing instruments.
9. Appeal allowed.