TMI Blog2024 (3) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... to Toys designed or clearly intended or not exclusively for use in play by children under 14 years of age. In the present case, the appellant has consistently from the very beginning contended that they are engaged in the business of decorations using balloons, and the goods (balloons) imported were intended to be used only for decoration. The department has not been able to establish otherwise. As per the list of items shown in the IS 9873 (Part I): 2012 item at (k) shows that holiday decorations that are primarily intended for ornamental purposes are excluded. Thus goods used for decoration is excluded. The said item at (k) does not make any distinction or differentiation based on the material used in for the balloon. Further, in the present case the appellant offered to test the goods as to the nature of the material used. The department did not conduct any test. Thus, we are of the considered opinion that the order passed by original authority confiscating the goods and directing for re-export cannot be sustained. The impugned order is set aside. The goods are to be released to the appellant on payment of applicable duty, if any. The redemption fine is also set aside. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that balloons made of latex/rubber or foil /mylar or plastic, commonly known as party balloons, decoration balloons, and toy balloons, are classifiable under CTH 9503. 2.2. In view of the classification adopted, the Department was of the view that the foreign supplier must be registered as per the compulsory registration under Bureau of Indian Standards (BIS) for importing goods in terms of the Toys (Quality Control) Order, 2020 ( TQC Order ) issued by Department for Promotion of Industry and Internal Trade, Ministry of Commerce and Industry, Government of India ( DPIIT ). On this ground, the shipment was withheld clearance, and a query was raised in the EDI system. 2.3. In response to the query raised, the appellant vide a letter dated 20.09.2022 submitted that the subject goods are intended for party decoration only. Further, given the size of the subject goods, these are not suitable for use by children. It was also submitted that the scope of products from Part 1 of IS 9873 specifically excludes the subject goods, i.e., holiday decorations that are primarily intended for ornamental purposes . Therefore, it was submitted that the requirement of compulsory registration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he scope of the products under its coverage. According to it, certain products are not included within the scope of this part and the list of exclusions, inter alia, covers, holiday decorations that are primarily intended for ornamental purposes . Relevant extracts from IS 9873 are reproduced below: Products not included within the scope of this part of ISO 8124 are: a) bicycles, except for those considered to be toys, i.e. those having a maximum saddle height of 435 mm b) slingshots; .. k) holiday decorations that are primarily intended for ornamental purposes; l) . 2.9. The TQC Order has classified the toys as non-electric toys such as rattles, dolls, puzzles, etc. and electors which have at least one function dependent on electricity. The balloons cannot be covered under both these categories warranting requirement of license under BIS. 2.10. Further, a perusal of the categories and sub-categories from page 38 to 45 of the PRODUCT MANUAL FOR SAFETY OF TOYS AS PER IS 9873 (Parts 1,2,3,4,7,9) and IS 15644 of BIS available at the official website of BIS, www.bis.gov.in contains nothing related to balloons. 2.11. Pursuant to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round to hold that the subject goods require license under BIS. 2.15. Further, the appellant had submitted photographs of balloons in arches and fixtures made by the appellant. On a perusal of the same, it is evident that the subject goods cannot be construed as toys. Thus, viewed from any angle, the subject goods are not liable for confiscation and the impugned order merits to be set aside. 2.16. Without prejudice, the impugned goods are not liable for absolute confiscation and shall be allowed to be redeemed for home consumption. Reliance in this regard is placed on the decision of the Hon ble Apex Court in Commissioner of Customs vs. Atul Automation Pvt. Ltd., [2019 (365) E.L.T. 465 (S.C.)]. 2.17. Further, in the case of CC, Chennai-II vs. Mangal Engg. Tech Private Limited, 2021 (378) 409 (MAD), the Hon ble High Court has categorically held that the condition of re-export cannot by imposed under Section 125 of the Customs Act and on redemption, the goods are to be released to the importer only. 2.18. Further, the element of mens rea is absent in the present case and the actions of the appellant were bona fide. Accordingly, penalty is not imposable in terms of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otherwise. As per the list of items shown in the IS 9873 (Part I): 2012 item at (k) shows that holiday decorations that are primarily intended for ornamental purposes are excluded. Thus goods used for decoration is excluded. The said item at (k) does not make any distinction or differentiation based on the material used in for the balloon. Further, in the present case the appellant offered to test the goods as to the nature of the material used. The department did not conduct any test. 7.1. In the case of Commissioner of Customs (Port) Kolkatta Vs M/s. ESS ENN Impex of M/s. International (supra) the Tribunal considered a similar issue and held that as per clarification issued by DPIIT, the balloons used for decorations are outside the purview of the requirement to satisfy BIS registration as these are not intended to be used as toys. The relevant para reads as under: We find that the report contains that the impugned goods are party decoration inflatable item, but classifiable under CTH 9503 instead of declared CTH 3926 and held attract BIS Registration. The said report is inconclusive as no detailed analysis has been placed on record. Further, we find that the res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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