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TaxTMI 
TaxTMI 
2024 (4) TMI 77
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....TH 95069990. Customs Appeal No. C/41914/2014 have been filed by the Assessee being aggrieved by the Order-in-Appeal No. 1118/2014 dated 30.06.2014 passed by the Commissioner of Customs (Appeals). The appeals in C/40348 & 40349/2014 have been filed by the Department against the said Orders-in-Appeal dated 19.11.2013. 2. All these appeals involve the issue of classification of the imported goods in accordance with the provisions of Customs Tariff Act, 1975 and so being taken up together for disposal by this common order. 3. Brief facts of these appeals are that the Assessee, who is a manufacturer of garments under Chapter Heading 62 and 63 of Central Excise Tariff is also trading in Speedo brand of sports items have filed Bills of Entry Nos. 243069 dated 15.06.2013 and 3552396 dated 17.10.2013 for the clearance of imported goods declared as Swimming aids/ Roll up arm band and sea squad swim seat claiming the classification under CTH 95062900 with the benefit of Customs Notification No. 12/2012-Sl. No. 503 and C.Ex. Notification No. 1/2011-Sl. No. 126 and Customs Notification No. 21/2012-Sl. No. 1 with effective rate of duty (BCD-Nil & CVD-6%). However, the Original Adjudicating....
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....rder-in-Appeal No. 1118/2014 dated 30.06.2014 classified the Sea Squid Swim Seat, Headgears, Swimming Gioggles and Fabric hats under CTH 95069990 and Technical and Power Paddles under 95062900. Hence, the present appeals filed before this forum. 5. For better understanding of the issue the factual details have been reproduced below in a tabular format: Sl.No. Appellant Appeal No. Department Appeal No. BOE No. & Date Declaration in BOE Classification Claimed by Appellant with Rates Classification confirmed in the OIO/ Assessment order Classification upheld by the Commissioner (Appeals) 1 C/40001/2014 C/40349/2014 2430369 dated 15.06.2013 1. General Sports Equipment- Sea Squad swim Seat 1. 95062900 1.39269099 1. 95069990 2. Swimming Aids/ Arm Band/Seat Squad Arm band 2. 95062900 2. 39269099 2.95069990 BCD-Nil BCD-10% BCD-10% CVD-6% CVD-12% CVD-6% 2 C/40002/2014 C/40348/2014 3552396 dated 17.10.2013 1. Swimming Aids/ Roll up Arm Band 1. 95062900 39269099 (as per assessment order) BCD-10% CVD-12% 1. 95069990 2. General Sports Equipment- Sea Squad swim Seat 2. 95062....
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....te authority has while classifying these items under 95069990 overlooked "General Rules of Interpretation as per which specific heading which provides the more specific description should be preferred to a heading providing a more general description. Having held that the items under consideration viz. Sea Squad Swim Seats, Arm Bands and Bio Fuse Fins are meant for kids while swimming and the more specific heading would be 95062900 and not 95069990 which heading covers various games like boxing, badminton, hockey which are distinct from swimming. Therefore, going by Rule 3 of the rules of interpretation also these items are correctly classifiable under 95062900. iii. The lower authority failed to consider the submissions of the Assessee that in the past, the Department was classifying these items under 95062900 and also extending the benefit of various Notifications and when there is no change in the items imported there is no justification for change in classification and consequent denial of benefit under Notifications. iv. It was submitted that the lower appellate authority having upheld classification of bio fuse aquatic ear plugs and technical and power paddl....
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....g has to be considered over the heading giving general classification. viii. In Order-in-Appeal No. 1604/2013 dated 20.11.2013 Commissioner (Appeals) has accepted CTH 95062900 in respect of bio-fuse aquatic ear plugs which are similar in nature to the items in dispute. 7.2 The Ld. counsel for the Appellant has placed reliance on the following case laws:- (i) Commissioner of Central Excise, Bangalore-II Vs. Super Seals [2004 (174) ELT 321 (Tri.-Bang.)] and (ii) Arihant Industrial Corporation Ltd. Vs. Commissioner of Central Excise, Thane-II [2017 (357) ELT 471] 8. The Department have filed these two appeals against the impugned orders of the lower Appellate Authority on the following grounds:- i. The sea squad swim seat is basically to be used by kids in kid-pools to remain afloat in water and are not required to be used in active sports and are a non-essential part of any water sport. The Appellate Authority has correctly concluded that the chapter Heading mentions games but has failed to appreciate the cognate meaning of games and its relation to the imported goods viz. sea squad swim seat which has made him state that the goods fall under....
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..... But, the lower Appellate Authority had classified the subject imported items under CTH 95069990 as evident at Paragraph 5 above. 12. Chapter Heading 9506 covers Articles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or out-door games, not specified or included elsewhere in this Chapter; swimming pools and paddling pools Snow-skis and other snow-ski equip. CTH 950691 covers articles and equipment for general physical exercise, gymnastics or athletics. CTH 95062900 covers water skis, surf-boards and other water sports equipment. 13. The description of the goods involved in these appeals are:- (i) Sea Squad Swim Seat which is an inflatable baby seat boat with leg opening which is used to make children sit while learning swimming. (ii) Sea Squad Arm band which is a piece of material worn around arm over the sleeve which is used for children to make them feel confident while in water. (iii) Other items are also swimming aids for children of Speedo Brand which is famous internationally for swimming related articles and quipment. 14.1 In order to decide the classification of Swim Seats, Arm B....
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....r football; waist, thigh and hip protective equipment u 10% - 95069990 -- Other u 10% - 14.4 Whereas, we find that the appellant has sought classification of Sea Squad Swim Seat, Armband, Rollup Armband under CTH 95062900, Swimming Googles under CTH 90049090, Headgear of rubber or plastics under CTH 65069100, Fabric Hats under CTH 65050090, Bio Fuse Fins, Tech Paddle and Power Paddle under CTH 95062900 and Sea Squad character Cap under CTH 65069100. 15.1 The Original Adjudicating Authority has classified all the imported items under CTH 39269099 denying the benefit of the exemption Notification No. 12/2012-CE dated 17.03.2012, whereas the Lower Adjudicating Authority has classified all the items under CTH 95069990. 15.2 The Lower Appellate Authority has set aside the classification adopted by the Original Adjudicating Authority on the ground that swimming is a water sport and any equipment required or meant for swimming will come under the category of water sports. He has specifically classified Bio Fuse Aquatic Ear Plugs under CTH 95062900 vide his Order-in-Appeal No. 1604/2013 dated 20.11.2013. Other factor that appears to have weighed on his mind....
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....e not specifically covered under any entry in Chapter 39. Hence CTH 39269099 is not all applicable for the impugned goods. The Ld. Advocate has argued that the lower Adjudicating Authorities have erred while interpreting clause (B)(2) of the explanatory note to CTH 9506. We are of the view that these arguments are logical and requires to be considered. 20. We are of the view that CTH 95062900 covers any item as long as they are categorised as water sports equipment. Once the items are accepted as used for swimming, be it for recreation or otherwise in the swimming pool, classification of these items under CTH 95069990 as meant for "Outdoor games" is not correct. The impugned orders have accepted the fact that the items in question are meant for kids and used for swimming but the finding that they are not used for competition but used for fun and so not classifiable as water sports equipment is not a logical finding. If kids swim for pleasure and not for competition, it does not become an activity other than swimming. Having held that the items under consideration viz. Sea Squad Swim Seats, arm bands and bio fuse fitness fins are meant for kids while swimming and the more specifi....
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....IFIED OR INCLUDED ELSEWHERE IN THIS CHAPTER; SWIMMING POOLS AND PADDLING POOLS. - Snow-skis and other snow-ski equipment: 9506.11 -- Skis 9506.12 -- Ski-fastenings (ski-bindings) 9506.19 -- Others - Water-skis, surf-boards, sailboards and other water-sport equipment: 9506.21 -- Sailboards 9506.29 -- Other -- Golf clubs and other golf equipment: 9506.31 -- Clubs, complete 9506.32 -- Balls 9506.39 -- Other 9506.40 -- Articles and equipment for table-tennis - Tennis, badminton or similar rackets, whether or not strung: 9506.51 -- Law-tennis rackets, whether or not strung 9506.59 -- Other -- Balls, other than golf balls and table-tennis balls: 9506.61 -- Lawn-tennis balls 9506.62 -- Inflatable 9506.69 -- Other 9506.70 -- Ice skates and roller skates, including skating boots with stakes attached -- Other: ....