TMI Blog2019 (8) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... stances and in view of the principle of common parlance/ in terms of trade we hold that goods are not fireworks - Admittedly the essential use of impugned goods is as that of birthday candles. The introduction of Nitrogen, Potassium, Calcium, etc. is intended to just add on the sparkle to that candle and to add on a musical feature to the candles. The object is neither fireworks show for entertainment nor to have the explosions/bursts nor even to use the sparkle as fog lamp or signalling apparatus as are the characteristics of fireworks as per Head note of CTH 3604. This further corroborates our opinion that the impugned good cannot be classified under Chapter 36 CTH 3604 i.e. fireworks, signalling, flares, rain rockets, fog signals and other pyrotechnic articles. Rather these fall under Chapter 34 CTH 3406 candles, tapers and the like. Thus, G-Card Holder, Shri Kuber Nath Rai had a bonafide belief for the impugned goods to be assorted birthday candles simplicitor as the earlier two consignments had also been cleared rather on the basis of the reports of the Customs officers acknowledging the goods to be assorted birthday candles only. Above all, the present appellant admitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of CBLR, 2013 and proposing the revocation of their CB license with forfeiture of whole of the security submitted at the time of issue of their license. Appellant was issued with the show cause notice after Department noticed that appellant s two consignments of identical product (assorted birthday candles) had earlier been cleared through G-Card holder, Sh. Kuber Nath Rai. In furtherance of said show cause notice, the Order-in-Original cum offence report dated 13.12.2017 was prepared. The Additional Commissioner of Customs (Exports TKD), New Delhi ordered to seize birthday candles of the impugned bill of entry on the ground of holding them to be mis-declared however allowed the redemption thereof. In addition, the penalty on M/s. Ess Enn Impex, the partners thereof, Shri Kuber Nath Rai, G-Card Holder and on Customs Broker M/s. S. Guha Sarkar Co. and also upon the appellant was imposed. On receipt of the said offence report, Commissioner of Customs, Airport and General vide Order No. 42 dated 31.07.2018 had revoked the Customs Broker Licence of the appellant and forfeited the whole amount of security deposit of ₹ 75,000/-. However, no separat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile rebutting these arguments it is submitted on behalf of the Department that the clearance of two earlier consignments of similar goods cannot be a ground for any benefit when the subsequent live consignment was examined not only physically but by the labs as that of CFSL and PESO. The reports thereof leave no doubt to hold that the candles are the goods of fireworks/pyrotechnic substances as such are classifiable under CTH 36.04. The goods are accordingly the restricted goods and thus cannot be imported without permission of Foreign Trade Organisation. Since there was no licence produced for the import of said goods, the confiscation as ordered vide order dated 13.12.2017 had no infirmity. The penalty on the appellant has been levied on the basis of the observation that the Customs Broker failed to advice its clients about the import of such fire crackers/ birthday candles to be restricted and permissible only after getting necessary NOC. Hence, the penalty has rightly been imposed. There is no infirmity in the Order under challenge. Appeal is prayed to be dismissed. 5. After hearing both the parties and going through the entire record of this Appeal as well as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teboard tube or casing filled with the combustible material, often pyrotechnic stars. As per Wikipedia encyclopaedia Fireworks are a class of low explosive pyrotechnic devices used for aesthetic and entertainment purposes. The most common use of a firework is as part of a fireworks display (also called a fireworks show or pyrotechnics) a display of the effects produced by firework devices. Definition of pyrotechnic in Cambridge Dictionary a public show of fireworks, a show of great skills by someone giving performances or ammunition containing chemicals for producing smoke or light as for signalling, illuminating or screening. The bare perusal of these definitions alongwith the admission that the impugned goods are assorted candles makes it clear that the impugned goods neither can be called as firework nor are the pyrotechnic substance. 9. Now coming to the reports of CFSL which reads as follows: On the basis of physio-chemical examinations it is opined that the presence of Chlorate, Potassium, Aluminium, Nitrate and Sodium were detected only in the material contents of the wig fixed in the middle of the candl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... classified under Chapter 36 CTH 3604 i.e. fireworks, signalling, flares, rain rockets, fog signals and other pyrotechnic articles. Rather these fall under Chapter 34 CTH 3406 candles, tapers and the like. 11. In the Order dated 13.12.2017, the Assistant Commissioner after physically examining the goods and appreciating the various definitions of fireworks had formed the opinion as follows: Only the central red stick which is hardly less than one gram consisting of Chlorate, Potassium, Aluminium, Nitrate and Sodium that the said description does not match with the description of either firework or fire crackers. That even the heads of matchsticks are also made of oxidising agents viz. Potassium Chlorate, mixed with sulphur, fillers and glass powder, similar to the goods found in the central wick by CFSL. Hence, the impugned goods should not be treated as either firework or firecrackers. That the impugned goods are not prohibited goods but merely restricted goods as has also been accepted by PESO in their report dated 19.10.2016. But vide the Order under challenge, the adjudicating authority has still presumed the impugned goods as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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