2024(03)LCX0477
Ess Enn Impex
Versus
The Commissioner of Customs (Port)
CUSTOMS APPEAL NO. 76022 of 2023 decided on 11-03-2024
IN THE CUSTOMS, EXCISE AND
SERVICE TAX APPELLATE TRIBUNAL
EASTERN ZONAL BENCH: KOLKATA
REGIONAL BENCH – COURT NO.I
CUSTOMS APPEAL NO. 76022 of 2023
(Arising out of Order-in-Appeal KOL/CUS/PORT/KS/2023 dated 21.09.2023 passed by Commissioner of Customs (Appeals) 3rd Floor Custom House,15/1, Starand Road, Kolkata-700001)
M/s. Ess Enn Impex,
C-17, Wazirpur Industrial Area
Delhi-110052
: Appellant
VERSUS
The Commissioner of Customs
(Port),
3rd Floor, Customs House,
15/1, Strand Road, Kolkata- 700 001 : Respondent
APPEARANCE:
For the Appellant : Ms. Reena Rawat, Advocate
For the Respondent : Shri S. Debnath, Authorised Representative
CORAM:
HON’BLE MR. ASHOK JINDAL, MEMBER (JUDICIAL)
HON’BLE MR. K. ANPAZHAKAN, MEMBER (TECHNICAL)
FINAL ORDER NO.75546/ 2024
DATE OF HEARING/ DECISION: 11.03.2024
Order : [Per Mr. Ashok Jindal]
The appellant is in appeal against the impugned order.
2. The facts of the case are that the appellant imported mixed items in containers Under Bill of Entry No. 6133558 dated 05.11.2022. The dispute in this case is with regard to ‘inflatable party items’ which were classified by the appellant under CTH 3926 90 99. In pursuance to an alert on the Customs Broker, the impugned consignment was detained and the goods were examined on 100% basis by the said officers in the presence of the representative of the appellant. Apart from other goods at Sl. No. 6, the appellant declared ‘inflatable party items’ and classified the same under CTH 3926 90 99 which was found to be not correct in terms of National Customs Targeting Centre which has clarified the classification of ‘toy balloon’.
3. On the basis of examination and relying on the reports, Revenue was of the view that ‘inflatable party items’ were actually ‘party decorative inflatable item – decorative foil balloon’ which is classifiable under CTH 9503 00 90 instead of CTH 3926 90 99. Therefore, the impugned goods were re-assessed CTH 9503 00 90. Accordingly, adjudication order came to be passed classifying the impugned goods under CTH 9503 00 90.
4. The said order was challenged by the appellant before the Ld. Commissioner (Appeals) who upheld the order of the adjudicating authority. Against the said order, the appellant is before us.
5. The Ld. Counsel for the appellant submits that the findings of the authorities below are contrary to the Final Order of this Tribunal in their own case for their earlier imports vide Final Order 75483-75484 of 2023 dated 17.05.2023 wherein this Tribunal observed as under: -
7. We find that the report contains that the impugned goods are party decoration inflatable item, but classified 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 respondent sought clarification on the import of Inflatable Party decoration inflatable item from the Ministry of Commerce and Industry, Government of India and a clarification was received from the Department of Promotion of Industry and Internal Trade, Ministry of Commerce and Industry, Government of India vide F.No. 14031/47/2020-CI dated 24.02.2022
8. ….
9. As per the Government of India clarification, it is clear that 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 ballons or by mouthpieces fitted to balloons.
10. Further, it was held that the impugned goods imported by the respondent are not covered under Toy Quality Control Order, 2020. As it is clarified that the impugned goods are out of preview of BIS Registration by Ministry of Commerce and Industry, Govt. of India, in that circumstances, we hold that the items in question are not in the scope of BIS Standard and the report sought from NCTC by the Revenue is without any basis
11. We further hold that the appellants are not required for any BIS Registration for import of the impugned goods ie. INFLATABLE PARTY ITEM (INPAC).
6. It is further submitted that the goods are decorative items for placing the same in festival/celebration areas to enhance the aesthetics and are not ‘toy balloons’. It is her submission that the impugned order is contrary to the clarification issued by Department for Promotion of Industry and Internal Trade vide F. No. P140 31/47/2020 CI dated 24.02.2022. Wherein the said authority issued Toys (Quality Control) Order, 2020 wherein it has been categorically opined that the product imported under HSN Code 3926 90 90 / 9505 90 90 are not covered under the Toy (Quality Control) Order, 2020; therefore, impugned order is to be set aside.
7. On the other hand, the Ld. Authorized Representative for the Revenue supported the impugned order.
8. Heard the parties and considered their submissions.
9. We find that in the appellant’s own case for earlier imports (supra), the said issue came up before the Tribunal: whether the goods imported by the appellant falls under CTH 3926 90 99 or CTH 9503, wherein this Tribunal, relying on the decision of the Ld. Commissioner (Appeals), held that the correct classification of the goods in question is CTH 95059090 and BIS registration is not required. Relying of this Tribunal in the appellant’s own case for the earlier period, we hold that the goods in question are not classifiable under CTH 9503 00 90 as proposed by the Revenue and the Revenue has not proposed to classify the same under the said Chapter Heading. Hence, as the impugned goods are not classifiable under CTH 9503 00 90, therefore the impugned order, therefore the clarification adopted by adjudicating is not correct.
10. In these circumstances, the impugned order is not sustainable in the eyes of law and accordingly, the same is set aside.
11. In result, the appeal is allowed with consequential relief, if any.
(Operative part of the order was pronounced in open court)
(K. ANPAZHAKAN)
MEMBER (TECHNICAL)
(ASHOK JINDAL)
MEMBER (JUDICIAL)