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TMI Blog2019 (5) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... sifiable under CTH 34070010 and reject the appeal." 1.2 By his order in original, Joint Commissioner Customs Group IV, has held as follows:' "10. I order to re-classify the goods under CTH 96020090 of the goods viz "creative Toys/ Modelling Clay" covered under B/E No 650647 dtd 27.08.09 under Section 111(m) of the Customs Act, 1962. 11. I also impose a penalty of Rs. 10,000/- (Rupees Ten Thousand Only) on the importer M/s Kores (India) Ltd under Section 112 (a) of the Customs Act, 1962. 12. On payment of penalty, the above said Bill of Entry shall be reassessed with amendment in description and classification of the goods." 2.1 Appellants had filed Bill of Entry No 650647 dated 27.08.2009 for import clearance of 1778 Cartons of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal) has in his order referred to HSN Explanatory Notes to Chapter 9503, wherein it has been stated that this heading excludes modeling pastes put up for children's amusement. The imported goods are not modeling paste, but clay. Clay is use by children by constantly changing its shape and is thus clearly a recreational model as child indulges in re-creative activity by constantly changing its shape. iii. Since the clay imported by them is not "modeling paste" the imported goods would merit classification under CTH 95030090. iv. In past when they imported the same goods Custom Authorities had assessed the Bill Of Entries under CTH 95030090. [Bill Of Entry No 758703 dated 23.01.2009]. v. The imported goods is used exclusively by ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g with impugned order. 5.2 Commissioner (Appeals) has in para 6 and 7 of his order held as follows: "6. The appellant has claimed the classification under CTH 9503.90. The CTH 9503 covers reduced size models and similar recreational models, working or not, puzzles of all kinds and other toys. The reduced size models are of a kind mainly used for recreational purchases for e.g. models of boats, aircraft, trains, vehicles etc. However, the heading excludes, as per Explanatory Notes, modeling pastes put up for children's amusement. Thus, the question of classifying the modeling paste under the category of other toys or recreational models does not arise. The appellants have argued that the modeling paste and modeling clay are two differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, Cochin - 2005(188) ELT 365 (SC), the Hon'ble Supreme Court has held that application of residuary entry is to be made with extreme caution, being attracted only when no other provision expressly or by necessary implication applies to goods in question. The impugned goods are specifically covered under the category of modeling paste under CTH 3407. Therefore, the question of classifying them under residuary entry 9503.90 does not arise. Further, Hon'ble Tribunal in the case of Commissioner of C. Excise, Pune-I Vs. Praj Industries - 2009 (242) ELT 430 (Tri.-Mumbai) has held that Explanatory Notes to HSN are safeguide and aid for ascertaining true meaning of any expression used in the tariff. The Notes are not only of persuasive value but a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... els, working or not; puzzles of all kinds: 95030010 --- Of wood 95030020 --- Of metals 95030030 --- Of Plastics 95030090 --- Other 5.4 From plain reading of the terms of headings under consideration we find that heading 34070010 is more specific for modeling pastes which in our view will include the clays which are used for making models for amusement of children. Since this heading is more specific we are in agreement with the classification as has been held by the Commissioner (Appeal). 5.5 The decisions relied upon by the appellant in their appeal would not be applicable in the present case as the classification can be determined in terms of terms of headings itself. 5.6 However we find that appellants have in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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