TaxTMI 
TaxTMI 
2019 (8) TMI 497
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....ory, (CFSL) New Delhi and from Petroleum and Explosives Safety Organisation (PESO). Based on the reports, the Department formed an opinion that the goods appeared to be classifiable under Chapter heading 3604 "fireworks, signalling flares, rain rockets, fog signals and other pyro-technic articles" whose import is restricted under the Foreign Trade Policy. Resultantly, a show cause notice No. 26/9 dated 02.02.2018 was served upon said importer, M/s. Guha Sarkar Co., their partner, the G-Card Holder and also upon the appellant proposing them to be held responsible for contravention of Regulations of CBLR, 2013 and proposing the revocation of their CB license with forfeiture of whole of the security submitted at the time of issue of their license. Appellant was issued with the show cause notice after Department noticed that appellant's two consignments of identical product (assorted birthday candles) had earlier been cleared through G-Card holder, Sh. Kuber Nath Rai. In furtherance of said show cause notice, the Order-in-Original cum offence report dated 13.12.2017 was prepared. The Additional Commissioner of Customs (Exports TKD), New Delhi ordered to seize birthday candles of the ....
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....is licence in the given circumstances is highly inappropriate penalty. He has relied upon the following case laws: * Penshibao Wang P. Ltd. Vs. Commissioner of Customs (Seaport-Import), Chennai reported in 2016 (338) E.L.T. 597 (Tri. - Chennai) * Ashiana Cargo Services Vs. Commissioner of Customs (I & G) reported in 2014 (302) E.L.T. 161 (Del.) * Kunal Travels (Cargo) Vs. Commissioner of Customs (I & G), IGI Airport, New Delhi reported in 2017 (354) E.L.T. 447 (Del.) 4. While rebutting these arguments it is submitted on behalf of the Department that the clearance of two earlier consignments of similar goods cannot be a ground for any benefit when the subsequent live consignment was examined not only physically but by the labs as that of CFSL and PESO. The reports thereof leave no doubt to hold that the candles are the goods of fireworks/pyrotechnic substances as such are classifiable under CTH 36.04. The goods are accordingly the restricted goods and thus cannot be imported without permission of Foreign Trade Organisation. Since there was no licence produced for the import of said goods, the confiscation as ordered vide order dated 13.12.2017 had no infirmity. The penalty on....
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....d sounds and is used for entertainment. As per Cambridge Dictionary - "fireworks is an explosive in a small container filled with explosive chemicals that produce bright coloured pattern or loud noises when they explode". The most common feature of fireworks is a paper or pasteboard tube or casing filled with the combustible material, often pyrotechnic stars. As per Wikipedia encyclopaedia - "Fireworks are a class of low explosive pyrotechnic devices used for aesthetic and entertainment purposes. The most common use of a firework is as part of a fireworks display (also called a fireworks show or pyrotechnics) a display of the effects produced by firework devices." Definition of pyrotechnic in Cambridge Dictionary - "a public show of fireworks, a show of great skills by someone giving performances or ammunition containing chemicals for producing smoke or light as for signalling, illuminating or screening." The bare perusal of these definitions alongwith the admission that the impugned goods are assorted candles makes it clear that the impugned goods neither can be called as firework nor are the pyrotechnic substance. 9. Now coming to the reports of CFSL which reads as follo....
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....are the characteristics of fireworks as per Head note of CTH 3604. This further corroborates our opinion that the impugned good cannot be classified under Chapter 36 CTH 3604 i.e. "fireworks, signalling, flares, rain rockets, fog signals and other pyrotechnic articles." Rather these fall under Chapter 34 CTH 3406 "candles, tapers and the like." 11. In the Order dated 13.12.2017, the Assistant Commissioner after physically examining the goods and appreciating the various definitions of fireworks had formed the opinion as follows: "Only the central red stick which is hardly less than one gram consisting of Chlorate, Potassium, Aluminium, Nitrate and Sodium that the said description does not match with the description of either firework or fire crackers. That even the heads of matchsticks are also made of oxidising agents viz. Potassium Chlorate, mixed with sulphur, fillers and glass powder, similar to the goods found in the central wick by CFSL. Hence, the impugned goods should not be treated as either firework or firecrackers. That the impugned goods are not prohibited goods but merely restricted goods as has also been accepted by PESO in their report dated 19.10.2016." But vid....