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2023 (9) TMI 727
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....t they are a partnership firm involved in the business of import, trading and re-packing of Toy Balloon made of Natural Rubber Latex. The applicant is intending to import "Foil Balloon" from China, which are used for party decoration and for entertainment purposes. These balloons ordinarily have shiny reflective surfaces and are often printed with colour pictures and patterns for gifts and parties. They are used for decoration for various events such as birthday, and marriage. The said foil balloons are available in various kinds. Some are of the shape of alphabets, numbers and other shapes such as heart, star etc. The said foil balloons are not used as toys but are only used for decoration and entertainment purposes. The applicant is of the view that the subject item is classifiable under heading CTH 9505 9090 under the heading "other" and the main heading deals with festive, carnival and other entertainment articles, including conjuring tricks and novelty jokes. 3. The applicant submitted that in their opinion the subject items are rightly classifiable under CTH 9505 9090 and summrised the grounds for their opinion as under:- 3.1 The classification of the product "foil ball....
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....nt further submitted that the goods cannot be considered to be a toy balloon which ordinarily falls under heading 9503 of the Customs Tariff Act, 1975. Due to the fragile nature of the foil balloons and its actual use, the goods cannot be used by children as a toy. In this respect the applicant submitted that the Indian Standard applicable for toys is given in IS 9873 (Part 1):2019. The said Indian Standard categorically states that the following products are not included within the scope of the said Indian Standard.- a) bicycles, except for those considered to be toys, i.e., those having a maximum saddle height of 435 mm (see Clause E. 1); b) slingshots; NOTE "Slingshots" are also known as "catapults". c) darts with metal points; d) home and public playground equipment; e) compressed air- and gas-operated guns and pistols (see Clause E.1); f) kites (except for the electric resistance of their strings, which is included); g) model kits, hobby and craft items, in which the finished item is not primarily of play value; h) sporting goods and equipment, camping goods, athletic equipment, musical instruments and fur....
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.... use. 3.5 In support of their contention, the applicant have cited the following case laws:- (a) The Hon'ble Supreme Court in the case of Collector of Customs Vs. Kumudam Publications [1997 (96) ELT 226 (SC)] has held that "it is not entirely correct to say that the end use or function of the goods is irrelevant to decide the question of classification". A three Judge Bench of the Hon'ble Supreme Court had also relied upon the function and end use in determining the classification in Indian Tool Manufactures Vs. Asst. Collector of Central Excise, Nasik & Others reported in 1994 (74) ELT 12 (SC). (b) The Hon'ble Supreme Court in the case of Commissioner of Central Excise Vs. Wockhardt Life Sciences Ltd reported in 2012 (277) ELT 299 (SC) had held that "the functional utility and predominant usage of the commodity must be taken into account apart from the understanding in common parlance to determine the correct classification of the product". 3.6 The applicant submitted that Rule 4 of the General Rules for the Interpretation of the Import Schedule clearly states that the goods which cannot be classified in accordance with Rule 1 to 3 shall be clas....
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....d that the heading 9505 docs not cover the item Balloons of any description i.e. toy balloon, party balloon, foil balloon etc. Further, printed foil balloons are generally identified as toys in common parlance and hence, the goods i.e. Foil Balloons of different designs and colours are toy balloons which falls under Heading 9503. It was specifically mentioned in the Para (D)(vii) of Explanatory Notes to Chapter I leading 9503 and in S.No.284 of Notification No. 50/2017 dated 30.06.2017 that toys balloons are rightly classifiable under Heading 9503. Further, it is pertinent to mention the Explanatory Notes, (D)(vii) to Chapter Heading 9503, which is as under: 9503 Tricycles, scooters, pedal cars and similar wheeled toys; dolls; carriages; dolls; other toys; reduced-size (scale) models and similar recreational models, working or not; puzzles of all kinds.- A. Wheeled toys. B. Dolls' carriages (e.g., strollers), including folding types. C. Dolls. D. Other toys. This group covers toys intended essentially for the amusement of persons (children or adults), however, toys which, on account of their design, shape or constituent material, are....
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....ns falling under heading 9503, it is submitted that the Webster's New World Dictionary defines a toy as any article to play with especially a play thing for children. The Toys (Quality Control) Order, 2020, states that the foil applies to toys (product or material) designed or clearly intended, whether are not exclusively, for use in play by children under fourteen (14) years of age. The test, therefore, is whether the foil articles of various shapes are products/materials that are intended to be used for play by children. The answer is a categorical 'NO' for the reason that these foil articles are intended and used only for decorative purposes in events and functions and are not intended to be used as toys. ii. In common parlance also these foil articles cannot be regarded as toys. Judicial notice may kindly be taken of the fact that these foil articles are not purchased in the market for the purpose of play by children but are only purchased for decorative purposes. Therefore, the contention of the Department ('Jurisdictional Commissioner of Customs') that they are identified as toys in the common parlance, is clearly misconceived and without any evid....
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....irpur Industrial Area, Delhi-110052. 9. I have considered all the materials placed before me in respect of the subject goods. I have gone through the submissions made by the applicant during the personal hearings as well as the response received from the 'Jurisdictional Commissioner of Customs'. The subject item for which advance ruling has been sought; its characteristics, functionality and utility etc. are broadly discussed in the foregoing paras. Therefore, I proceed to pronounce a ruling on the basis of information available on record as well as existing legal framework having bearing on the classification of the subject goods i.e. 'Foil Balloons'. The issue before me is the classification of 'Foil Balloons' which the applicant intends to import from China. 10. I find that "Foil Balloons" are used for party decoration and for entertainment purposes. These balloons ordinarily have shiny reflective surfaces and are often printed with colour pictures and patterns for gifts and parties. "Foil Balloons" are used for decoration for various events such as birthday, marriage, new-year eve celebration and many other joyous programmes and they are available ....