ORDER
Archana Wadhwa, Member (J)
1. The dispute in the present appeal relates to the classification of Ball Point Pen Ink for the purposes of Countervailing Duty. The appellants imported the said Ink and claimed the assessment under Customs Tariff Heading 3215.90 and Central Excise Tariff 3215.10 attracting Countervailing Duty at nil rate. However, the authorities took the view that the Ball Point Pen Ink falls under Heading 3215.90 attracting Countervailing Duty @ 16%. Accordingly, a Demand-cum-Show Cause Notice raising a demand of duty of Rs. 2,49,076.00 (Rupees two lakh forty-nine thousand and seventy-six), was issued to them, which stood decided by the authorities below against the appellants.
2. We have heard Shri B.N. Chattopadhyay, learned Consultant for the appellants and Shri T.K. Kar, learned SDK for the Revenue. For better appreci tion of the dispute, we reproduce the relevant tariff heading :-
“32.15
Printing
ink, writing or drawing ink and other inks,
whether or not concentrated or solid.
Â
3215.10
– Writing Ink
Nil
3215.90
– Other
16%”
The appellants’ contention is that inasmuch as Ball Point Pen Ink is not ing but writing ink, the same would be classified under sub-heading 3215.10. C the other hand, the authorities below have relied upon the H.S.N. Explanato Notes and observed that the Ball Point Pen Ink is specifically covered by the e pression, ‘Other Inks’, and as such, the same have to be classified as ‘Other’ u der sub-heading 3215.90. We also reproduce below the H.S.N. Explanatory Not in respect of the inks :-
‘”In HSN :-
“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 (A) Printing Ink (or Colours) are pastes of varying consistency, obtained by mixing a finely divided black or coloured pigment with a vehicle. The pigment is usually carbon black for black inks 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, ink based on logwood extracts or on synthetic organic colours. Indian ink, used mainly for drawing, consists usually for 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) Marking inks (e.g., based on silver nitrate). (5) Metallic inks (finely divided metals or alloys in suspension in a solution of gum, e.g., gold, silver or bronze inks). (6) Prepared sympathetic or invisible inks (e.g 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, tables, stocks, etc.) to be used as inks after simple dilution or dispersion.”
This heading does not include :
(a) Developers consisting of a toner (a mixture of carbon black and thermoplastic resins) compounded with a carrier (grains of sand coated with ethyl cellulose), used in photocopying machines (Heading 37.07).
(b) Refills for ball point fountain pens comprising the ball point and ink-reservoir (Heading 96.08). On the other hand, mere ink-filled cartridges for ordinary fountain pens remain in this heading.
(c) Inked ribbons for typewriters or ink-pads (Heading 96.12).”
From the comparison of the above two entries as given in Central Excise Tariff and in H.S.N., we find that both are not aligned. Whereas the H.S.N. classifies the ink as ‘Printing Ink and Others’, the Central Excise Tariff classifies the same as ‘Writing Ink and Others’. The Explanatory Note to H.S.N. when specified that inks for ball point pens would be classified as ‘Others’, means that the same would be classified as ‘other than printing ink’. ‘Writing Ink’ in H.S.N. Explanatory Notes is also classifiable under ‘Other Inks’. This fact was taken note of by the Tribunal in the case of Commissioner of Central Excise, Madras v. G.M. Pens (International) Ltd. reported in 2001 (133) E.L.T. 720 (Tri. – Chennai). It was observed in Para 5(b) of the Order that for the purpose of CVD, the product has to be classified under Central Excise Tariff Act, 1985. The C.E.T.A. classifies all inks between a heading for ‘Writing Inks’ and ‘Other-Inks’. The C.E.T.A., 1985 is not fully aligned with the H.S.N. and as such, H.S.N. Notes may not be relevant and binding. There is no doubt that ball point inks are used for the purposes of writing. The Tribunal in the case of Commissioner of Central Excise, New Delhi v. Technik Industries reported in 2000 (120) E.L.T. 123 (Tribunal) has held –
“……….The scope of writing ink from the head notes under HSN is found to cover and include drawing inks, copying and hectographic inks, ball point pens, duplicating machines, typewriting ribbons, marking inks, metallic inks and other specified inks.”
By observing so, the Tribunal found that even the sketch pen and drawing inks would be covered under the Heading 3215.10 for writing inks. The said Order was subsequently followed by the Mumbai Bench in the case of Commissioner of Central Excise, Mumbai-III v. Camlin Ltd. reported in 2001 (127) E.L.T. 215 (Tri. – Mum.), wherein it was held that inks used in writing instruments like market pens, fountain pens, drawing pens and sketch pens are classifiable as writing ink under sub-heading 3215.10 of Central Excise Tariff Act, 1985. The ball point ink is definitely used for the purposes of writing and there is no dispute about this fact. As such, according to us, the same would be properly classifiable under Heading 3215.10 as ‘Writing Ink’ and not under heading 3215.90.
3. We also take note of the Tribunal’s decision in the case of Commissioner of Central Excise, Mumbai v. Camlin Ltd. reported in 2002 (144) E.L.T. 638 (Tri.-Mumbai), wherein the Tribunal observed that there is no reason to restrict the understanding of the words – ‘Writing Ink’, and after taking note of the H.S.N. Explanatory Notes, it was observed that the sub-classification of ink under 32.15 should be based on constituent material. The classification in the subheadings is to be made on the basis that ‘Writing Inks’ as per the H.S.N. Head Notes under 32.15 indicate that ordinarily such inks are based on water. The appellants had taken a specific stand before the authorities below that the ball point ink is water-based and as such, according to the said judgment, would fall under heading 3215.10. We agree with the above contention of the appellants.
In view of the foregoing, the appeal is allowed with consequential relief to the appellants.