STANDARD PENCILS (P) LTD. ETC. ETC.versusCOLLECTOR OF CENTRAL EXCISE, MADRAS

J

                  STANDARD PENCILS (P) LTD. ETC. ETC.                                A
                                 v.
                COLLECTOR OF CENTRAL EXCISE, MADRAS

                              SEPTEMBER 19, 2002

       [SYED SHAH MOHAMMED QUADRI AND S.N. VARIAVA, JJ.]                             B


          Central Excise Tariff Act, /98j:

           Schedule-Sub-heading 3307.90-Kum-Kum pencil-Levy of excise
    duty-Exemption from-Revenue classifYing Kum-Kum pencil under sub-                C
     heading 3304.00-Assessee-manufacturer contending that Kum-Kum pencil
     being a form of Kum-Kum was classifiable under sub-heading 3307.90 and
     was exempt from excise duty under exemption Notification No. 23j/J986-CE
     dated 3.4. 1986 as amended from time to time-Held, Kum-Kum in powder
    form, liquid form, sticker form falls within the meaning 'Kum-Kum-Kum-           D
     Kum in pencil form along with other three forms is also available in the
     market and when the Central Government in the Notification has not confined
     the benefit to a particular form or forms, there is no reason to exclude Kum-
     Kum in pencil form from the benefit-As a general word 'Kum- Kum' is used
     in the Notification, it will take in all the forms of 'Kum-Kum '-As held by
     the Collector (Appeals), Kum-Kum pencil is one of the form of 'Kum-Kum'         E
     and is entitled to benefit of Notification No.23j/J986CE.

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 737 of 1995.

         From the Judgment and Order dated 30.4.1993 of the Central Excise
    Customs and Gold (Control) Appellate Tribunal, New Delhi in E/A. No. 2543        F
    of92-C in F.O. No. 146of1993-C.
                                             WITH
          C.A. No. 10232 of 1996.

          V. Lakshmikumaran, A.R. Madhav Rao, Alok Yadav and V. Balachandran,        G
    for the Appellants.

          Soli J. Sorabjee, Attorney General, Rajiv Nanda and B. Krishna Prasad,
    for the Respondent.

          The following Order of the Court was delivered :                           H
                                         509
    510                     SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A         Civil Appeal No. 737of1995:

          The short but interesting question that arises in this appeal filed by the
    Manufacturer-assessee from Order No. 146/1993-C in Appeal No. E/2543192-c
    of the Customs, Excise and Gold (Control) Appellate Tribunal dated 30th
    April, 1993, is: whether 'Kum-Kum Pencil' is entitled to the benefit of
B   Notification No. 235/1986-CE dated 3rd April, 1986.

         The assessee manufactures Kum Kum pencil. Notice dated 13th March,
  1991 was issued to the assessee by the Assistant Collector of Central Excise,
  V-Division, Madras to show cause as to why 'Kum-Kum Pencil' should not
C be classified under Heading 3304.00 of the Central Excise Tariff Act, 1985. The
  question that fell for consideration was whether Kum-Kum pencil and eye-
  brow pencil are one and the same goods classifiable under Heading 3304.00
  or different goods. Both the Assistant Collector and the Collector (Appeals)
  have held that Kum-Kum Pencil is different arid classifiable under Heading
  3307.00 of the Central Excise Tariff Act, 1985. But that gave rise to the next
D question whether kum-kum pencil would really fall within the meaning of
  'Kum-Kum. On that point also, the original authority and the appellate authority
  found that Kum-Kum Pencil is one of the form of'Kum-Kum' and, therefore,
  it is entitled to the benefit of Notification No. 235/1986-CE. However, the
  Customs, Excise and Gold (Control) Appellate Tribunal (for short, 'the Tribunal'),
  on appeal by the Revenue, held that Kum-Kum in powder form, in liquid form
E or in. sticker form could be treated as 'Kum-Kum' in common parlance. It
  declined to take Kum-Kum, in pencil form, as falling under the exemption
  granted by the Notification No. 235/1986-C.E. That view is assailed in this
  appeal.

F         Notification 235/J 986-CE, as amended by Notification No. 323/1986-C.E.
    dated 22.5.1986, No. 12/1981-C.E. dated 23.1.1987 and No. 48/1988-C.E. dated
    1.3.1988, reads as under:

            "Exemption to Kum Kum and kajal-In exercise of the powers conferred
            by sub-rule (I) of rule 8 of the Central Excise Rules, I944, the Central
G           Government hereby exempts goods of the description specified in
            column (2) of the Table hereto annexed and falling under sub-heading
            No. 3307.90 of the Schedule to the Central Excise Tariff Act, 1985 (5
            of 1986), from so much of the duty of excise leviable thereon which
            is specified in the said Schedule as is in excess of the amount
            calculated at the rate specified in the corresponding entry in column
H           (3) thereof.
                    STANDARD PENCILS (P) LTD. v. C.C.E.                          511
                                      TABLE                                            A
   SI. No.                 Description of goods                 Rate of duty

      (I)                             (2)                                  (9)
      I.                            Kum Kum                                Nil
                                                                                       B
      2.                            Kaja!                                  Nil
      3.                            Sindur                                 Nil
      4.                            Alta and Mahavar                       Nil

      Indeed, the notification proceeds on the footing that Kum Kum and four
other goods fail under Sub-Heading 3307.90.                                            C
       From a reading of the order of the Collector (Appeals), it is clear that
Kum Kum is available in four different forms in the market. It is also on record
that it is being used by the ladies/girls to make a mark "bindi" on the
forehead. If this be so, it is difficult to appreciate the reasoning of the Tribunal
that though the powder form, liquid form and the sticker form would fall within        D
the meaning of'Kum Kum' and not the pencil form of Kum Kum. When 'Kum
Kum' in all the said four forms is available in the market and the Central
Government in the notification in question has not confined the benefit of the
said notification to a particular form or forms, there seems to be no valid
reason to exclude 'Kum-Kum' in pencil form from the benefit of the notification.       E
As a general word, 'Kum-Kum' is used in the notification, it will take in all
the forms of' Kum-Kum'.
      In this view of the matter, we set aside the order of the Tribunal and
restore that of the Collector (Appeals).
       The civil appeal is, accordingly, allowed.                                      F
       No. costs.
       Civil Appeal No. I 0232 of I 996:
       In view of the order passed in Civil Appeal No. 737of1995, this appeal
is also allowed.                                                                       G
       No. costs.
RP.                                                             Appeals· allowed.