ORDER
V.K. Agrawal, Member (T)
1. In these three Appeals filed by M/s. G.M. Pens International Ltd. and others, issue involved is whether the inks for market pens are classifiable under Sub-Heading 3215.10 of the Schedule to the Central Excise Tariff as claimed by them or under sub-Heading 3215.90 of the Tariff as confirmed by the Commissioner under the impugned order.
2. We heard Shri V. Lakshmikumaran, learned Advocate and Mrs. Krishna A Mishra, learned SDR. It was mentioned by both learned Advocate and learned SDR that the issue of classification of marker pen have been the subject matter of various decisions of this Tribunal wherein it has been held that market inks which are special kind of inks would fall under sub-Heading No. 3215.90 of the Central Excise Tariff Act. The decision are :
(1) CCE New Delhi v. Technik Industries 2000 (120) ELT 123
(2) CCE, Mumbai III v. Camlin Ltd. 2001 (129) ELT 215
(3) CCE, Mumbai v. Camlin Ltd. 2002 (144) ELT 638 (Tri)
(4) CCE, Madras v. G.M. Pens (International) Ltd. 2001 (133) ELT 720 (Tri)
3. Learned Advocate submitted that in case of Technik Industries, the Tribunal, while classifying the impugned goods under sub-Heading 3215.90 has observed that Heading 3215 of the Central Excise Tariff and heading 32.15 in HSN is the same since the Heading covers “Printing ink”, writing or drawing ink and other inks, whether or not concentrated or solid; that the Tribunal has also observed that “the scope of writing ink from the head notes under HSN is found to cover and include drawing inks; copying of hectographic inks, inks for ball point pens, duplicating machines, typewriter ribbons, marking inks, metallic inks and other specific inks for example invisible inks fall under the category of other inks. Therefore, we find sketch pen and drawing inks would be covered under heading 3215.10 for writing inks, while marker inks and highliter inks which are specialized kind of inks, would fall under Heading 3215.90”; that in first Camlin decision 2000 127 ELT 215 Tribunal followed its earlier decision in Technik Industries only.
4. Learned Advocate submitted that Heading 32.15 of the Customs Tariff is aligned with HSN whereas the sub-Heading under Central Excise Tariff Act are not so aligned and therefore any decision based on HSN Explanatory Notes may not be applicable for the purpose of classifying a particular product under a specific sub-Heading in the Central Excise Tariff Act.
5. We have considered submissions of both the sides. Heading 32.15 of the Customs Tariff reads as under :
“Printing ink, writing or drawing ink and other inks, whether or not concentrated or solid.
Printing Ink :
3215.11 -- Black 3215.19 -- Other 3215.90 -- Other Heading 32.15 of the Central Excise Tariff read as under : 3215 Printing ink, writing or drawing ink and other inks, whether or not concentrated or solid. 3215.10 -- Writing Ink Nil 3215.90 -- Other 16% The Explanatory Notes of HSN to Heading 32.15 are as under :
(A) Printing inks (or colours) are pastes of varying consistency, obtained by mixing a finely divided black or coloured pigments with a vehicle. The pigment is usually carbon black or black ink and may be organic or inorganic for coloured inks. The vehicle consists of either natural resins or synthetic polymers, dispersed in oils or dissolved in solvents, and contains a small quantity of additives to impart desired functional properties.
(B) Ordinary writing or drawing inks are solutions or suspensions of a black or coloured material in water, usually with the addition of gum and other products (e.g. preservatives). These include inks based on iron salts, inks based on logwood extracts or on synthetic organic colours. Indian ink, used mainly for drawing, consists usually of carbon black in suspension in water (with the addition of gum Arabic, shellac, etc). or in certain animal glues.
(C) Other inks in this Heading include :
(1) Copying and hectographic inks (ordinary inks thickened with glycerol, sugar, etc.).
(2) Inks for ball point pens.
(3) Inks for duplicating machines or for impregnating ink-pads or typewriter ribbons
(4) Marketing inks (eg. based on silver nitrate).
(5) Metallic inks (finely divided metals or alloys in suspension in a solution of gum, eg. gold, silver or bronze inks).
(6) Prepared sympathetic or invisible inks (eg. based on cobalt chloride).
These products are generally in the form of liquids or pastes, but they are also included in this Heading when concentrated or solid (i.e. powders, tablet, sticks, etc.) to be used as inks after simple dilution or dispersion.”
6. A perusal of the Heading 32.15 reveals that sub-Heading in HSN and under Central Excise Tariff are different. As per Explanatory Notes of HSN, there are three categories of inks, namely, printing inks, ordinary writing or drawing inks, and other inks. In HSN, the first sub-Heading is “other” (3215.90). This sub-Heading 3215.90 relating to “other” under HSN covers both inks mentioned in ‘B’ refers to ordinary writing or drawing ink and ‘C’ refers to other inks. Thus ‘other inks’ in Explanatory Notes ‘C’ covers inks which are not ordinary writing or drawing but which may be writing inks. This is apparent from the fact that inks for ball point pens fall under Explanatory Notes ‘C’, and not under ‘B’. In Central Excise Tariff Headings 32.15 has been divided into two sub-Heading – 3215.10 covers writing ink’ and second sub Heading 3215.90 covers ‘other inks’.
7. Thus in our view sub-Heading 3215.10 in Central Excise Tariff will cover not only Explanatory Notes ‘B’ in HSN Below Heading 3215 but also explanatory Notes ‘C’ which refers to ‘other inks’ if these inks are writing inks. It is not the case of the Revenue that market ink is not writing ink. We, therefore, do not find ourselves in agreement, with due regard, with the view expressed by the Tribunal in the case of CCE, Mumbai v. Camlin Ltd. 2002 244 ELT 638 wherein the Tribunal has come to the following conclusion
“From the reading of notes and the sub-heading of 32.15 under HSN and Central Excise Tariff Act, it would be clear that only ‘Writing Ink’ as mentioned at (A) in notes of HSN would get classified in notes of HSN would get classified 3215.10 of CETA, 1985 and all ‘other inks’ viz Printing Ink and speciality inks as mentioned in Heading (A) (C) of notes would fall under Heading 3215.90”.
8. In our view (B) in HSN only relates to ‘ordinary writing or drawing inks’ and other writing or drawing inks are covered by (C). This view is strengthened from the decision in the case of Linc Pen & Plastic Ltd. v. CC, Kolkata, 2003 156 ELT 126 (T) wherein the Tribunal has classified the Ball Point Pen Ink for the purpose of Countervailing duty under sub-Heading 3215.10 of the Central Excise Tariff as Writing Ink. As we are differing from the view expressed by a Co-ordinate Bench, we request the Hon’ble President to place the issue regarding classification of marker ink before the Larger Bench for settling the issue.