ENGINEERING ENTERPRISR Vs. UNION OF INDIA

JUDGEMENT

(1.) The short question that arises for our consideration is whether fibre tip pens exported by the petitioner fall under Chapter Heading 96 of the Drawback Schedule entitling the petitioner to claim a duty drawback.

(2.) The petitioner manufactures and exports goods which are classified by it as fibre tip pens. On export 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 drawback under the classification "fibre tip pens". On appeal, the Commissioner of Customs (Appeals) by his order dated 4th August 2005 allowed the appeal and held that the petitioner was entitled to a duty drawback under Chapter Heading 96 of the Drawback Rules. At the instance of the Commissioner of Customs, the Government of India by its order dated 20th February 2007 revised the order of the Commissioner (Appeals) and rejected the claim of the petitioner for duty drawback on the grounds and reasons stated therein. On a petition filed in this Court, bearing Writ Petition No. 2099 of 2007, the Court remanded the matter back to the Government for reconsideration in the light of the observations made therein. After remand, by an order dated 22nd May 2008, the Government of India again allowed the revision application and rejected the application of the petitioner for duty drawback. That order is impugned in this petition.

(3.) In the impugned order, the Government has stated that they have carefully perused the literature and samples produced by the petitioner and thereupon has come to the conclusion that the goods classified as "fibre tip pens" were not capable of being used on their own and could be used only after they were attached to some equipment (plotter) and as such were not covered by Chapter Heading 96. Copies of the literature as well as the samples which were produced before the Government for perusal of the Revisional Authority are also produced before us for our 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.