TaxTMI 
TaxTMI 
1994 (12) TMI 199
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....he appellants that items are classifiable under 3604.90 as Pyrotechnic toys other than fire-works has been denied by the Assistant Collector holding that item is classifiable under Heading 3604.10 on the ground that it produces thick smoke upon its ignition and snake like ash emerges. While upholding the view of the Assistant Collector, the Collector (Appeals) observed that in view of the predo- minant trade parlance and acceptance of Serpent Eggs as `fireworks' by other manufacturers, the classification made by the Assistant Collector is proper and correct. The relevant Heading 36.04 and sub-headings are as follows :- "36.04 Fireworks, signalling flares, rain rockets, FOG signals and other pyrotechnic articles. &nb....
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....hnic toys, such as caps for toy pistols (prepared in tapes, sheets, rolls or circular plastic rings) magic candles, and snaps for Christmas crackers. The combustion of these, Pyrotechnic toys causes only limited effects." He said that Note 1(a) is not applicable to the item in question since firing is not ensured by a firing powder nor provide entertainment through acoustic, luminous or smoke-producing effects. The Assistant Collector is not correct in giving finding that the product `Serpent Eggs' on ignition gives heavy smoke amidst thick black spiral form of ash in the shape of black snake. The smoke is only an incidental but it gives amusement to the children in forming of snake shape and the fact that amusement or entertainment prov....
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....the mercurous compound, came early into use for this purpose in pyrotechnic toys. He said that the emergence of serpent like ash is for the purpose of making the pyrotechnic toys and the product has the effect of producing serpent like spiral ash, can only be treated as pyrotechnic toys. He also referred to the decision of the Gujarat High Court in the case of Commissioner of Sales Tax v. Hind Matches Sales Depot - 1978 (41) STC 108, wherein the Court has observed that fireworks would mean and include all those devices which, when exploded or burned, produce noise or brilliant light and which are used on festive occasions for amusement or entertainment. He also drew our attention to the Board's Letter F. No. 108/ 3/88-CX. 3, dated 23-5-1988....
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....onsidered the submissions made by both sides and perused the records. The Collector (Appeals) has given a categorical finding that it does not produce entertainment through acoustic, luminous or smoke producing effects but they produce entertainment by means of producing snake like ash out of pale blue flame and smoke comprising of chemicals. Further the item Serpent egg would not satisfy the meaning `fireworks' as given either in Chambers Dictionary or in the Oxford Dictionary, but he has proceeded to classify the item under Heading 3604.10 on the ground that it was understood as fireworks in the trade parlance but not substantiated. On going through the process of manufacturing and on seeing the demonstration of the pellet in question, we....
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.... a toy for children available at any time to play with. The fact that it has been described as a Pyrotechnic toy in some technical work would not affect this position if it was essentially a Pyrotechnic firework in the sense used in Shorter Oxford English Dictionary as "any contrivance for producing with fire a pleasing or scenic effect." Further it is also sold normally only on Diwali, Charistmas & other festive occasions along with other fireworks. 7. The Board's circular cited by the Learned Counsel is in respect of other type of articles and not for the "serpent eggs" which are entirely different. 8. On further consideration however, it appears at the same time that Learned Counsel's arguments that the intention of the HSN Explana....
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....s as well. The Excise Tariff itself does not use the word "toy" and what we have to decide is as to whether it is "fireworks" or other than fireworks. 9. Hon`ble Bombay High Court and in its judgment in the case of Commissioner of Sales Tax v. Hind Matches Sales Depot [1978 (41) STC 108] cites with approval the Gujarat High Court's judgment in Commissioner of Sales Tax v. India Cutlery Stores and quotes that : "in popular parlance "fireworks" mean and include all those devices which, when exploded or burned, produce noise or brilliant light and which are usually displayed or exhibited for celebrating occasions of national, religious or social rejoicing or family festivals." 10. Thus we find that it is a ticklish issue. Since articl....