TaxTMI 
TaxTMI 
2008 (9) TMI 1
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.... (ii) Solvent Dyes (iii) Binders 2. 100-Camel Fount Drawing Ink (i) Carbon Black (Pigment) (ii) Shellac Binder (iii) Water & Preservatives 3. 07-Camel Waterproof Drawing Ink (i) Carbon Black (Pigment) (ii) Shellac Binder (iii) Water & Preservatives 4. 09-Camel Spl. Drawing Ink Black (i) Carbon Black (Pigment) (ii) Shellac Binder (iii) Water & Preservatives 5. 98- Camel Rapidugraph Ink Black (i) Carbon Black (Pigment) (ii) Shellac Binder (iii) Water & Preservatives 6. 75- Designers' Indian Ink Black (i) Carbon Black (Pigment) (ii) Shellac Binder (iii) Water & Preservatives 7. 75A- Designers' Indian Ink Black (i) Carbon Black (Pigment) (ii) Shellac Binder (iii) Water & Preservatives 8. 75B Designers' Indian Ink Black (i) Carbon Black (Pigment) (ii) Shellac Binder (iii) Water & Preservatives 9. Sketching Pen Ink (i) Acid Dyes (ii) Basic Dyes (iii) Food Colours (iv) Water (v) Hygroscopic Agents (such as Glycols) 4. The finding of the Tribunal qua items mentioned at serial nos. 2 to 9 in the above chart is that they....
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....falling under Chapter 32 of the Central Excise Tariff is 18% which is also the rate applicable to artists' and students' colours. However, pens and parts of pens have remained exempted from duty for a long time. A demand was made that writing inks which fall in the same category of goods, may also be exempted from duty. It was also argued that a factory producing pens is required to pay excise duty on writing inks which is anomalous. On examining these requests, we had decided to exempt writing inks also from excise duty." 9. The aforesaid contentions of the assessee which were taken in appeal were accepted by the Commissioner (Appeals) vide his Order dated 28^th of March, 1999. After referring to the numerous dictionaries to ascertain the meaning of various terms, it was held that: - "In view of the above definition of the words "write" and "writing" it reveals that the method by which the ideas are transformed into symbols, characters, letters or words on any surface including paper is to be considered as writing. Accordingly Fountain pens, Marker Pens, Croquill Lettering Pens, Sketch Pens etc. are the instruments which are being used for transforming the ideas into symbols....
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....Nil. While for one ink being "marker ink", it held against the assessee. It was held that "marker inks" have to be classified under residual entry CSH 3215.90 and is liable to pay duty at the rate of 16%. The Tribunal relied on HSN to reach the said conclusion. 14. Aggrieved against the Order of the Tribunal, three sets of appeals have been filed, one by the assessee and two by the Revenue. 15. The Counsel for the parties have been heard at length. 16. The Indian Central Excise Tariff creates two categories of "writing ink" and residuary entry of "other". The HSN on the other hand creates categories for "printing ink", "other" and then residuary entry of "other". For convenience, the relevant extract of HSN is reproduced herein below:- "EXTRACT OF CHAPTER HEADING 32.15 32.15 - PRINTINK 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 inks (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 ....
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....be seen from the aforesaid letter of the Finance Minister and the trade notices referred to. 20. As per scheme of HSN, "printing inks" are classifiable under specific Chapter Sub Headings 3215.11 and 3215.19 of the HSN and are described under Note "A". All the rest of the inks are covered in residuary heading 3215.90 and are described under Note "B" "ordinary writing or drawing inks" and Note "C" "other inks". It may be noted that scheme of Indian Excise Tariff entry is completely opposite and "printing inks" will fall under residuary entry of CSH 3215.90 and "writing or drawing inks" fall under specific entry 3215.10. 21. The basic contention of the respondent- Department for all practical purposes is that pens are not writing instruments, because if the pens are writing instruments then obviously the inks used in such pens manufactured by the assessee are writing inks. 22. The Tribunal took an extreme example of paint being used as graffiti. The essential function of paint is to provide a protective covering for building structures and use in graffiti is incidental. While markers are described as pens by the Notification of the Department itself and marker inks are used ....