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TMI Blog1997 (11) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... 173Q of the Central Excise Rules, 1944 for contravention of various Rules of the Central Excise Rules, 1944. 2. The Collector had raised two issues before him which are as follows : (1) whether the mixture that is obtained from power operated mixing machine and used for printing wax paper and polythylene coated paper would be covered under the definition of printing ink classifiable under chapter sub-heading 3215 of Central Excise Tariff and if so the same would be dutiable? (2) as to whether the extended period can be invoked in terms of proviso to Section 11A of the Act for alleged suppression/mis-statement of fact extended to evade payment of duty? 3. As regards the first issue, the Collector rejected the contention of the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee is nothing but an identifiable product known as printing ink and is covered within the tariff description of sub-heading 3215.00 of Central Excise Tariff Act. As regards the claim of the assessee that the product is not marketed or marketable; he has held that admittedly this colour mixture is not marketed as such because the noticee is not a manufacturer seeking to manufacture and trade in printing ink but certainly it is trading its product in the printed form like printed waxed paper or polyethylene paper. He has held that the marketability of the product thus becomes evident. No doubt there might have been some complaints regarding the quality of printing as has been brought in the defence but this complaint is possible even o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso not drawn samples for chemical test and there is no opinion from the Chemical Examiner to show that the item is printing ink. He also filed a Misc. application seeking to rise additional grounds in which it has been contended that the appellants were under a bona fide belief that colour mixture prepared by them for captive use during the material period did not come in the category of excisable goods since it did not have functional properties which will make it function as Printing Ink as defined in HSN to be liable to duty under Chapter 3215. It is pleaded that there was neither any suppression nor any mis- statement nor any intention to evade duty for invocation of larger period. In this regard the appellants are relying on the judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd sent to market for sale. The tests carried out pertaining to the printing ink are as follows : 1. Hue (Shade) 2. Opacity 3. Strengt 4 Density 5. Viscosity 6. Dispersion 7. Strike through and show through 8. Tack 9. Drying Time 10. Setting Time 11. Coverage 12. Solvent extracted Residue 13. Resistance to Rubbing etc. It is his submission that even as per HSN Notes at page 469, the ingredients should consist of either natural resins or synthetic polymers, dispersed in oils or dissolved in solvents and contains a small quantity of additives to impart the desired functional properties. He points out that the Collector himself had agreed that the item did not satisfy this specification but yet held it to be printin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of the HSN Notes. He also submits that the appellants were under the bona fide belief that it is not a printing ink, therefore, the question of invoking larger period does not arise. 6. Ld. DR on the other hand submits that the findings given by the Collector is required to be upheld, as the appellants were using the items for printing wax paper and polyethylene coated paper. The appellants were manufacturing the item by mixing pigment, solvent and hence it performs the function of a printing ink and as there was no filing of declaration, the extended period can be invoked. 7. On a careful consideration of the submission made by both the sides, we find force in the submissions advanced by ld. Advocate. It is an admitted fact t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (76) E.L.T. 241 (S.C.) and Union of India v. Delhi Cloth General Mills Co. Ltd. as reported in 1997 (92) E.L.T. 315 (S.C.). 8. It was pointed out by ld. Advocate that in terms of Explanatory Notes under Heading 3215 at page 469, additives are required to be added in small quantity to impart desire functional properties, to satisfy the definition of printing ink. He also pointe out that in order to specify the item as a printing ink, it has passed several tests and it has been so pointed out by one such manufacturer as per their letter dated 22-6-1991. The department has not produced any evidence to show that the item satisfied the criteria. Admittedly the appellants are not adding additives and there is no evidence that the item satisf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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