G.M. PEN INTERNATIONAL LTD Vs. CC

JUDGEMENT

(1.) THE stay application and appeal arise from ex parte order in appeal No. C. Cus: 789/99 dated 14.12.1999 dismissing the appellant's appeal under Section 129E of the Act for non -compliance of the interim order, directing them to pre -deposit the entire duty of Rs. 3,07,277/ -. The appellants had imported "Dry Wipe Market Ink" and had claimed classification only under Chapter sub -heading 3215.90 with rate of duty of 18% under Section 17 of the Customs Act, 1962. The demands were confirmed pertaining to countervailing duty i.e. additional duty of Customs. The contention of the appellant is that no CVD is liable in the present case, as the said item under Excise Tariff would fall under 3215.10 as "writing ink" which carries nil rate of duty. Therefore, they stated that they can clear the goods without deposit of CVD which has not been considered by the authorities and hence the order is totally unsustainable. They have relied on the decision of the Tribunal in the case of SRF Ltd. vide final order No. 3086 -3087/99 dated 8.12.1999. They have challenged the order of the Commissioner (Appeals) with regard to the manner in which she has disposed of the appeal. They have pointed out that the present order of Commissioner (Appeals) is in toto of the same draft as passed by the Commissioner (Appeals), Chennai -III with regard to the dismissal of the appeal under Section 35F of the Act, quoting identical judgements and even wordings. It is stated that such order of the Commissioner (Appeals), Chennai -III were set aside by the Tribunal with a direction that ex parte order cannot be passed by citing the case of M/s. Jesus Sales Corporation Ltd. as , which was under a different statute and not under the present legislation. It had been pointed out that it was mandatory in terms of Section 35A(1) of the Act requiring the Commissioner (Appeals) to mandatorily grant an opportunity of hearing. The earned Counsel submits that Section 35A(1) of the C. Excise Act is pan materia with Section 128(1) of the Customs Act. Therefore, he submits that the order impugned is required to be set aside and the matter be remanded to the Commissioner (Appeals) by granting waiver of the pre -deposit.

(2.) THE learned D.R. Sri Section Kannan defence the order impugned on the ground that the Commissioner has relied on the Explanatory Notes to HSN which is aligned and the classification adopted for CVD purpose is in order. He refers to Explanatory Notes to HSN which clearly distinguishes the ordinary writing ink and marking ink. He also submits that the classification held by the Commissioner is correct and the duty amount is required to be made for CVD purpose, hence there is no case for waiver in the matter.

(3.) THE learned advocate counters by saying that Excise Tariff has not been aligned with regard to this Tariff Heading with HSN as can be seen from the headings and submits that it is distinguishable and not applicable to the present case. He submits that the Tariff itself holds that 'writing inks' are chargeable to nil rate of duty.