9911796707
TMI Blog2023 (9) TMI 727X X X X Extracts X X X X X X X X Extracts X X X X ..... the business of import, trading and re-packing of Toy Balloon made of Natural Rubber Latex. The applicant is intending to import "Foil Balloon" from China, which are used for party decoration and for entertainment purposes. These balloons ordinarily have shiny reflective surfaces and are often printed with colour pictures and patterns for gifts and parties. They are used for decoration for various events such as birthday, and marriage. The said foil balloons are available in various kinds. Some are of the shape of alphabets, numbers and other shapes such as heart, star etc. The said foil balloons are not used as toys but are only used for decoration and entertainment purposes. The applicant is of the view that the subject item is classifiable under heading CTH 9505 9090 under the heading "other" and the main heading deals with festive, carnival and other entertainment articles, including conjuring tricks and novelty jokes. 3. The applicant submitted that in their opinion the subject items are rightly classifiable under CTH 9505 9090 and summrised the grounds for their opinion as under:- 3.1 The classification of the product "foil balloon" would fall under heading 9505 which reads ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Tariff Act, 1975. Due to the fragile nature of the foil balloons and its actual use, the goods cannot be used by children as a toy. In this respect the applicant submitted that the Indian Standard applicable for toys is given in IS 9873 (Part 1):2019. The said Indian Standard categorically states that the following products are not included within the scope of the said Indian Standard.- a) bicycles, except for those considered to be toys, i.e., those having a maximum saddle height of 435 mm (see Clause E. 1); b) slingshots; NOTE "Slingshots" are also known as "catapults". c) darts with metal points; d) home and public playground equipment; e) compressed air- and gas-operated guns and pistols (see Clause E.1); f) kites (except for the electric resistance of their strings, which is included); g) model kits, hobby and craft items, in which the finished item is not primarily of play value; h) sporting goods and equipment, camping goods, athletic equipment, musical instruments and furniture; however, toys which are their counterparts are included. It is recognized that there is often a fine distinction between, for example, a musical instrument or a sportin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the goods is irrelevant to decide the question of classification". A three Judge Bench of the Hon'ble Supreme Court had also relied upon the function and end use in determining the classification in Indian Tool Manufactures Vs. Asst. Collector of Central Excise, Nasik & Others reported in 1994 (74) ELT 12 (SC). (b) The Hon'ble Supreme Court in the case of Commissioner of Central Excise Vs. Wockhardt Life Sciences Ltd reported in 2012 (277) ELT 299 (SC) had held that "the functional utility and predominant usage of the commodity must be taken into account apart from the understanding in common parlance to determine the correct classification of the product". 3.6 The applicant submitted that Rule 4 of the General Rules for the Interpretation of the Import Schedule clearly states that the goods which cannot be classified in accordance with Rule 1 to 3 shall be classified under heading appropriate to the goods to which they are most akin. Therefore, even by following the kinship rule, the goods under consideration, viz., "foil balloon" are of the category/type mentioned in the HSN Explanatory Notes, which are used as decorations to decorate rooms. 3.7 . The applicant f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specifically mentioned in the Para (D)(vii) of Explanatory Notes to Chapter I leading 9503 and in S.No.284 of Notification No. 50/2017 dated 30.06.2017 that toys balloons are rightly classifiable under Heading 9503. Further, it is pertinent to mention the Explanatory Notes, (D)(vii) to Chapter Heading 9503, which is as under: 9503 Tricycles, scooters, pedal cars and similar wheeled toys; dolls; carriages; dolls; other toys; reduced-size (scale) models and similar recreational models, working or not; puzzles of all kinds.- A. Wheeled toys. B. Dolls' carriages (e.g., strollers), including folding types. C. Dolls. D. Other toys. This group covers toys intended essentially for the amusement of persons (children or adults), however, toys which, on account of their design, shape or constituent material, are identifiable as intended exclusively for animals, e.g., pets, do not fall in this heading, but are classified in their own appropriate heading. This group includes: All toys not included in (A) to (C). Many of the toys are mechanically or electrically operated. These include:- i). Toys representing animals or non-human creatures even if possessing predominantly huma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re products/materials that are intended to be used for play by children. The answer is a categorical 'NO' for the reason that these foil articles are intended and used only for decorative purposes in events and functions and are not intended to be used as toys. ii. In common parlance also these foil articles cannot be regarded as toys. Judicial notice may kindly be taken of the fact that these foil articles are not purchased in the market for the purpose of play by children but are only purchased for decorative purposes. Therefore, the contention of the Department ('Jurisdictional Commissioner of Customs') that they are identified as toys in the common parlance, is clearly misconceived and without any evidence. iii. The toy balloons mentioned in paragraph (D)(vii) of the Explanatory Notes to heading 9503 refer to the rubber/latex balloons which are commonly found for sale in beaches and parks. It may be noted that articles made of foil are not sold in such public places since they cannot be used as play articles as they are very fragile and are therefore, not intended to be sold as a toy. On the other hand, the HSN Explanatory Notes to the heading 9505 clearly s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o pronounce a ruling on the basis of information available on record as well as existing legal framework having bearing on the classification of the subject goods i.e. 'Foil Balloons'. The issue before me is the classification of 'Foil Balloons' which the applicant intends to import from China. 10. I find that "Foil Balloons" are used for party decoration and for entertainment purposes. These balloons ordinarily have shiny reflective surfaces and are often printed with colour pictures and patterns for gifts and parties. "Foil Balloons" are used for decoration for various events such as birthday, marriage, new-year eve celebration and many other joyous programmes and they are available in various shapes such as alphabets, numbers, heart, star etc. The said foil balloons are not used as toys but are only used for decoration and entertainment purposes. "Foil Balloons" are very fragile and non-durable goods which are not purchased in the market for the purpose of play by children and they are used like festoons also as explained in the application and also shown in the pictures attached thereto. They are decorated on the wall on various joyous occasions. 11. I find th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1/47/2020-CI dated 24.02.2022. As per the said clarification the Indian Standard IS Registration i.e. any product or material designed or clearly intended for use in play by children under 14 years of age, includes requirements for safety of toy balloons as well. These requirements include the possible choking hazards presented by pieces of broken latex balloons or by mouthpieces fitted to balloons. Further, it was held that the impugned goods imported by the respondent under HSN 39269099/95059090 are not covered under Toy Control Order, 2020. Thus, from the perusal of above cited order of CESTAT, Kolkata it is clear that subject goods "Foil Balloons" cannot be considered as toys and no BIS Registration is required to import the same. Further, CESTAT, Kolkata has held NCTC report inconclusive.
14. In view of the foregoing discussions and findings, I rule that if the subject goods i.e "Foil Balloons" are made of Nylon/HDPE not of Latex/Rubber and imported for the purpose of party decoration or entertainment, merit classification under the heading 9505 and specifically under subheading 9505 9090 of the First Scheduler the Customs Tariff Act, 1975 X X X X Extracts X X X X X X X X Extracts X X X X
|
