2009 (10) TMI 131

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....t of the goods, the petitioner made a claim for duty drawback claiming them to be "fibre tip pens". A show cause notice was issued to the petitioner by the Assistant Commissioner of Customs, Drawback (EDI) Air Cargo Complex, Sahar, Mumbai (respondent no. 3 herein) on 21st April 2004 as to why the duty drawback claims made by it be not rejected on the ground that the goods exported were not writing instruments, but were parts of a plotter or a plotter used as a marking system. The petitioner showed cause. However, by an order dated 29th April 2005, the respondent no. 3 rejected the claim of the petitioner holding that the goods exported by the petitioner were not writing instruments and as such the petitioner was not entitled to claim duty d....

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....perusal and we have perused the same. For the reasons indicated below, we are of the view that the goods of the petitioner clearly fall within the Chapter Heading 96 of the Duty Drawback Rules, and as such the impugned order cannot stand. 4. Entry 96.03 of Chapter Heading 96 reads as under: "Fountain pens, ball point pens, fibre tip pens, colour pens, highlighter pens, sketch pens, roller ball pens, gel pens, marker pens, all sorts (including gift sets with or without box)." We have to consider whether the goods exported by the petitioner fall within this Entry 96.03 and whether the decision of the Government holding otherwise is in any way perverse. 5. Admittedly, the fibre tip pens manufactured by the petitioner are not ordinary fibre....

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....e colour from the preceding words, namely "fountain pens, ball point pens" as well as subsequent words, namely "colour pens, highlighter pens, sketch pens, roller ball pens, gel pens, marker pens". He submitted that all the words preceding and following the words "fibre tip pens" relate to the instruments which are used for drawing or writing by hand by human beings. The words "fibre tip pens" therefore must be construed ejusdem generis. Mr. Desai further submitted that in any event the view taken by the Government that the words "fibre tip pens" refer to the writing instruments used by humans and not by machines is a possible view and in the absence of perversity, this Court should not interfere. 7. We are unable to agree with the submiss....

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.... the common genus of all the words is that the items described by them are writing instruments whose object is to write, draw or highlight any written portion (highlighter pens). The common genus is that they write or draw lines on a paper. That is the common genus and not that they are used by hand. They may be used by hand or may be used by a machine, but all of them write or draw lines or figures. Fibre tip pens exported by the petitioner are also used for the same purpose, namely drawing of lines, graphs or figures with the help of a plotter machine though not by hand. 8. We also notice from the first appellate order of the Commissioner of Customs (Appeals) that it was not disputed before him by the Revenue that the goods imported by t....