2008(09)LCX0209

In the Customs, Excise & Service Tax Appellate Tribunal, Chennai

Shri P.G. Chacko, Member (Judicial) Shri P. Karthikeyan, Member (Technical)

Commissioner of Customs, Chennai

Versus

Universal Ventures

Final Order No. 943/2008 & Misc. Order No. M/376/2008 dt. 1.9.2008 certified on 18.9.2008 in C/CO/74/2002 and Appeal No. C/510/2001

Advocated By -

Shri N.J. Kumaresh, SDR for Appellants
Shri A. Mohd. Ismail, Adv. for Respondent

Per P. Karthikeyan:

Revenue has filed the captioned appeal. In the impugned order the Commissioner (A) allowed the appeal filed by the importer (respondents) and restored the classification of what was declared as plastic toy musical boxes vide Bill of Entry No. 349559 dated 11.09.01, seeking their classification under CTH 9503.50 and CET 9503. The Commissioner (A) vacated the decision of the original authority who had classified these musical boxes under CSH 3926.90 for the purpose of both customs tariff and central excise tariff treating them as an article of plastic (jewelry box made of plastic) and not a toy musical instrument. The revenue seeks restoration of this order as regards the classification of these goods described as toy musical instrument.


2. The respondents have filed a cross objection seeking revision of classification of clocks covered by the same Bill of Entry as toy clocks under chapter heading 9503, reversing the classification decided under heading 9105 ('other clocks' of the tariff) in the impugned order.


3. The Ld. SDR submits that the musical box is not a miniature musical instrument which entertains children. The HSN notes for chapter heading 9503 covers, among others, toy pianos, trumpets, drums, gramophones, accordions, xylophones, musical boxes, etc. The impugned item produces musical tune. However, the impugned goods are beautiful plastic boxes appropriate for keeping jewelry. These boxes produce music when they are opened owing to the operation of a mechanical winding arrangement. This property is incidental. Some of these boxes have compartments and are intended for use as jewelry box. Considering the obvious intention of the subject product, it could not be classified as a toy musical instrument. The functionally useful product also does not belong to the family of toys cited as illustrative list of toy musical instruments in the HSN explanatory notes for CTH 9503 which lists out the items covered, at SL. No. 11.


4. The Ld. Counsel for the respondents submits that the Commissioner (A) was right in holding that these boxes which produce musical tune at the time they are opened could not be called as jewelry boxes.


5. On a careful consideration of the facts of the case and the submissions, we find that the impugned goods are beautiful boxes made of plastic. Its design supports its intended use as a container of jewelry. The music attached to its utility is an added attraction incidental to its main purpose as a jewelry box. The HSN explanatory notes also support the plea of the revenue that the impugned item is not a toy musical instrument like a small accordion or piano. In the result, we allow the appeal filed by the Revenue.


6. As regards the cross objection of the respondent seeking classification of toy clocks under heading 9503 as against CTH 9105.29 and CET 9105.00 ordered by the Deputy Commissioner and sustained in the impugned order, both sides agree that functionally the items are clocks. The Counsel for the respondents claims that the impugned products carry pictures to amuse children and the time keeping is incidental. Therefore, the declared classification as toy clocks deserved to be accepted and the goods should be classified as toys falling under heading 9503.


7. The Ld. SDR submits a copy of the photographs of the impugned goods which shows standard clocks mounted on beautiful casings apparently of wood. Some of these also have other attributes like colorful light shades or beautiful pictures inscribed on them.


8. On a careful consideration of the case records and the submissions by both parties, we find that the impugned goods are standard clocks by function, embellished by pictures or other useful attachments like light shades. We are convinced that the impugned goods are regular clocks and not toys. We uphold the decision of the Commissioner (A) as regards the classification of this item and reject the objections filed by the respondents as devoid of merit. The appeal is disposed of.

Operative part of the Order dictated and pronounced in the open Court on 01.09.2008.

Equivalent 2009 (090) RLT 0525 (CESTAT-Che.)

Equivalent 2009 (234) ELT 0573 (Tri.-Chennai)

Equivalent 2009 (161) ECR 0241 (Tri. - Chennai)