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TMI Blog2024 (2) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal based its conclusion is the entries in the HSN. The said conclusion in the Order of the Tribunal is, therefore, vitiated and, accordingly, set aside - Once it is established that ball point pen ink attracts nil rate of duty, the confirmation of demand of clearance without payment on ball point pen ink and allegation of clearance of ball point pen ink by resorting to undervaluation does not sustain. Clandestine removal - HELD THAT:- The show cause notice that Revenue has compared total goods manufactured as reflected in balance sheet to the clearances effected on payment of duty by Thane unit and Revenue did not take into consideration goods cleared by Goa unit of the appellant whereas the balance sheet is common for both the units. Further, it is found that no investigation was carried out in respect of the balance amount on which duty is demanded such as dispatch particulars from the regular transporters, realization of sale proceeds and details from the regular dealers and buyers about receipt of finished goods. Therefore, relying on the ruling by Hon ble Allahabad High Court in the case of Continental Cement Company [ 2014 (9) TMI 243 - ALLAHABAD HIGH COURT] , it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y covering other inks under Central Excise Tariff Sub-heading No.3215.90 and that the said goods were classified by the appellant under Central Excise Tariff Subheading No.3215.10. It was further alleged that by lowering the values, ball point pen ink was cleared to their own depots at Calcutta and also to M/s. Quality Ink Ltd. who sold the said goods at prices higher than the price at which the goods were cleared by M/s. Kores (India) Ltd. and thus undervalued the clearances and as a result, differential duty was demanded from M/s. Kores (India) Ltd. Further, there was another allegation in the show cause notice that on comparison of clearances put together by adding clearances in all the invoices during the particular year and the production of ink as such stated in the balance sheet for that year, there was a huge difference in the quantities and there was allegation that the differential quantity was cleared clandestinely for the financial years 1998-99, 1999- 00 and 2000-01 and as a result, central excise duty to the tune of around Rs.66 lakhs was demanded. There were proposals for imposing penalties on all the four appellants. On contest, the said show cause notice was adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is classifiable under 3215.90 is erroneous. He has further submitted that as per Rule 3(a) of Rules for Interpretation of Central Excise Tariff, the heading provides the most specific description and shall be preferred to heading providing more general description. It is common knowledge that ball point pen ink is for the purpose of writing and, therefore, ball point pen ink is properly classifiable under 3215.10 as writing ink attracting nil rate of duty by following said Rule 3(a) of Rules for Interpretation of Central Excise Tariff. He has further submitted that once it is established that ball point pen ink does not attract central excise duty, the other allegation that the goods were cleared on undervaluation to depots and to M/s. Quality Ink Ltd. does not survive. He has further submitted that insofar as the allegation of clandestine removal is concerned, Revenue has compared the figures of clearances of various goods through invoices of present appellant which is a unit at Thane, with the figures reflected in balance sheet and that the balance sheet is for two units which are located at Thane and Goa and, therefore, such comparison is incorrect. He has further submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal erred in relying upon the HSN for the purpose of marker inks in classifying them under Chapter Sub-Heading 3215.90 of the said Tariff. The Tribunal failed to appreciate that the entries under the HSN and the entries under the said Tariff are completely different. As mentioned above, it is settled law that when the entries in the HSN and the said Tariff are not aligned, reliance cannot be placed upon HSN for the purpose of classification of goods under the said Tariff. One of the factors on which the Tribunal based its conclusion is the entries in the HSN. The said conclusion in the Order of the Tribunal is, therefore, vitiated and, accordingly, set aside. We agree with the findings recorded by the Commissioner (Appeals). 6. Now it is time to examine whether the entries in HSN and Central Excise Tariff are aligned. The entries in HSN are reproduced below:- 32.15 PRINTING 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 . Further, entries under Heading 32.15 in Central Excise Tariff are reproduced below:- 32.15 Printing ink ..... X X X X Extracts X X X X X X X X Extracts X X X X
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