TMI Blog2009 (10) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... object is to write or draw lines whether by hand or by machine - Entry 96.03 under Chapter Heading 96 not restricted to such goods used by hand - We do not find any justification for applying the test of use by hand for determining whether the petitioner’s product is “fibre tip pens”. In our opinion, the respondents applied the test which is unsustainable in law for holding that the petitioner’s product was not “fibre tip pens”. – held that impugned goods are entitled to drawback - the rule of ejusdem generis ordinarily apply to an interpretation of a statute or a rule and not to entry in Drawback Schedule - Here, we are interpreting only an entry appearing in the Schedule of Duty Drawback. We are of course conscious of the fact that the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner are not ordinary fibre tip pens used as writing instruments by hand by human beings. But the fibre tip pens manufactured by the petitioner are usually attached to a machine called as a "plotter" or other similar machine. Fibre tip pens are of different colours and the plotter machine uses the fibre tip pens attached to it for drawing graphs and designs in different colours and colour combinations. However, they are exported by the petitioner and purchased by the foreign buyers as "fibre tip pens". They are described in the shipping bills/exports as "fibre tip pens" and the customs had cleared the exports as "fibre tip pens". Mr. Patil, learned counsel for the petitioner, invited our attention to the catalogues of internationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We are unable to agree with the submissions of Mr. Desai. Firstly, the rule of ejusdem generis does not apply to the facts of the case. Black's Law Dictionary, Eighth Edition defines the "rule of ejusdem generis" thus: "A canon of construction that when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same type as those listed. For example, in the phrase horses, cattle, sheep, pigs, goats, or any other farm animal the general language or any other farm animal - despite its seeming breadth - would probably be held to include any four legged, hoofed mammals typically found on farms and thus would exclude chickens." In the present case, the words "fibre tip pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Revenue that the goods imported by the petitioner were fibre tip pens (see last but one paragraph of the order dated 4th August 2005). Even before us, the respondents did not dispute that the goods exported by the petitioner are fibre tip pens, but contended that the expression "fibre tip pens" appearing in Entry 96.03 was restricted to fibre tip pens which are used by hand as writing instruments. We find no justification for giving meaning restricted to the expression "fibre tip pens" in the manner as suggested by the respondents. 9. In G.S. Auto v. Collector of Central Excise, 2003 (152) E.L.T. 3 (S.C.), the Supreme Court has held that in the matter of classification of goods, the proper test to be applied is not the functional te ..... X X X X Extracts X X X X X X X X Extracts X X X X
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