TMI Blog2023 (9) TMI 727X X X X Extracts X X X X X X X X Extracts X X X X ..... ns also as explained in the application and also shown in the pictures attached thereto. They are decorated on the wall on various joyous occasions. The rejoinder of the applicant agreed upon that the contention of the Department ('Jurisdictional Commissioner of Customs') that Foil Balloons are identified as toys in the common parlance is clearly misconceived and without any evidence; said Analytics Report of NCTC, Mumbai docs not take into account the common parlance test as indicated above as well as the HSN explanatory notes to the heading 9505 - if the subject goods i.e. Foil Balloons are classified under the heading 9503 as per the paragraph (D)(vii) of the Explanatory Notes thereto, it would be similar to completely disregarding the fact Foil Balloons are purchased in the market for the purpose of decoration or entertainment. 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. - (SAMAR NANDA) Customs Authority for Advan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes that the heading 95.05 covers the following goods.- A) Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non-durable material. They include: (1) Decorations such as festoons, garlands, Chinese lanterns, etc., as well as various decorative articles made of paper, metal foil, glass fibre, etc., for Christmas trees (e.g., tinsel, stars, icicles), artificial snow, coloured balls, bells, lanterns, etc. Cake and other decorations (e.g., animals, flags) which are traditionally associated with a particular festival are also classified here. (2) Articles traditionally used at Christmas festivities, e.g., artificial Christmas trees (these are sometimes of the folding type), nativity scenes, Christmas crackers, Christmas stockings, imitation yule logs. (3) Articles of fancy dress, e.g., masks, false ears and noses, wigs, false beards and moustaches (not being articles of postiche - heading 67.04), and paper hats. However, the heading excludes fancy dress of textile materials, of Chapter 61 or 62. (4) Throw-balls of paper or cotton-wool, paper streamers (carnival type), cardboard trumpets, blow-outs , confetti, carn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations that are primarily intended for ornamental purposes; l) aquatic equipment intended to be used in deep water, swimming-learning devices and flotation aids for children such as swim-seats and swim-aids; m) toys installed in public places (e.g., arcades and shopping centres); n) puzzles having more than 500 pieces or without a picture, for specialists; o) fireworks including percussion caps, except percussion caps specifically designed for toys; p) products containing heating elements intended for use under the supervision of an adult in a teaching context; q) steam engines; r) video toys that can be connected to a video screen and operated at a nominal voltage greater than 24 V; s) babies' pacifiers (dummies); t) faithful reproduction of firearms; u) electric ovens, irons or other functional products operated at a nominal voltage greater than 24 V; v) bows for archery with an overall relaxed length exceeding 120 cm; w) fashion jewellery for children (see Clause E.1) From the exclusion given in the Indian Standard, reproduced above, it is apparent that the actual use of the item and the intention of the manufacturer and distributor is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect goods are classifiable under CTH 9505 9090 and thus render justice. 4. The applicant in their CAAR-1 indicated that they intend to import the impugned goods under the jurisdiction of Office of the Commissioner of Customs, Chennai-II, Custom House, 60, Rajaji Salai, Chennai- 600 001 (hereinafter referred to as the 'Jurisdictional Commissioner of Customs'). The application was forwarded to the 'Jurisdictional Commissioner of Customs' in terms of the Section 28 (I)(1) of the Customs Act, 1962 for their comments on classification of subject goods i.e. 'Foil Balloons' and call upon them to furnish relevant records. 5. Further, The 'Jurisdictional Commissioner of Customs' sent the comments to CAAR, Mumbai vide letter dated 31.03.2023. They submitted that:- Chapter Heading 9505 covers :- A. Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non-durable material. The heading excludes statuettes, statues and the like of a kind used for decorating places of worship. The heading also excludes articles that contain a festive design, decoration, emblem or motif and have a utilitarian functi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that balloons are of various types such as:- i. Balloons made of latex/rubber or foil /mylar or plastic, also commonly known as party balloons, decoration balloons, and toy balloons, which are classifiable under CTI1 9503; ii. Balloons used in aeronautics or metrology, classifiable which are classifiable under CTH 8801; iii. Balloons used for medical purposes, classifiable under CTH 9018. 5.1 The 'Jurisdictional Commissioner of Customs' submitted that in view of the description provided in customs tariff, Explanatory notes of CTH 9503 and analytics report of NCTC it is clear that Balloons made of Latex/ rubber or foil or plastic commonly known as party balloons are classifiable under CTH 9503 and more particularly under CTH 95030090. 6. A personal hearing in the matter was held on 16.05.2023 through virtual mode. Shri. Hari Radhakrishnan, Advocate, represented the case for M/s. Bharat Balloon House. The applicant reiterated the points submitted in the application and requested for the ruling regarding the accurate classification of subject goods i.e. 'Foil Balloons'. 7. Further, the applicant sent the Rejoinder to CAAR, Mumbai in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdictional Commissioner of Customs') in their objections dated 31.03.2023 have relied upon an Analysis Report dated 29.10.2021 issued by National Customs Targeting Centre, Mumbai. The said report has no statutory or legal force and is an internal document of the Department, which is not binding on this Hon'ble Authority (CAAR, Mumbai). Further, the said Analytics Report does not take into account the common parlance test as indicated above as well as the HSN explanatory notes to the heading 9505. Therefore, the said report has no evidentiary value in law. 7. 1 For the reasons mentioned in the application in the Advance Ruling and for the reasons mentioned above the applicant humbly prayed that this Hon'ble Authority (CAAR, Mumbai) may rule that the goods are classifiable under heading 9505 9090 and thus render justice. 8. Another personal hearing in the matter was held on 22.08.2023 through virtual mode. Shri. Hari Radhakrishnan, Advocate, represented the case for M/s. Bharat Balloon House. He again explained the points submitted in the application rejoinder and requested for the ruling regarding the accurate classification of subject goods i.e. 'Foil Balloo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y by children, whereas, they are purchased as decorative items. I agree with the rejoinder of the applicant that the contention of the Department ('Jurisdictional Commissioner of Customs') that Foil Balloons are identified as toys in the common parlance is clearly misconceived and without any evidence; said Analytics Report of NCTC, Mumbai docs not take into account the common parlance test as indicated above as well as the HSN explanatory notes to the heading 9505. I am of the view that if the subject goods i.e. Foil Balloons are classified under the heading 9503 as per the paragraph (D)(vii) of the Explanatory Notes thereto, it would be similar to completely disregarding the fact Foil Balloons are purchased in the market for the purpose of decoration or entertainment. 12. Before deciding on the issue, let me deliberate on the legal framework prescribed in Customs Tariff Act, 1975, Chapter/ Section notes along with HSN explanatory notes. Relevant portion of CTH 9505 is reproduced below for ease of reference:- 9505 Festive, carnival or other entertainment articles, including conjuring tricks and novelty jokes. 9505 10 00 - Articles for Christmas festivi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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