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TMI Blog2017 (4) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri S J Sahu, Assistant Commissioner (AR) for the respondent Per: C J Mathew: This appeal of M/s Ayush Toys Marketing Pvt Ltd disputes the finding of Commissioner of Customs (Appeals), JNCH, Nhava Sheva in order-in-appeal no. 406 (GER. VI)/2016 (JNCH)-Appeal -II dated 31 st August 2016. The appellant is an importer of sports goods and, in the present instance, filed bill of entry no. 5861206 dated 4 th July 2016 for the import of 'PVC inflatable toys' which, however, was held by the original authority to be classifiable under heading no.9506 9990 of the First Schedule to the Customs Tariff Act, 1975 and further denying them the benefit of preferential duty under the Asia-Pacific Trade Agreement. The items that were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We have heard Learned Counsel for the Appellant and the Learned Authorised Representative. 3. Learned Counsel draws our attention to notification no. 113/(RE-2008)-2004-2009 dated 16 th of June 2009 issued under Foreign Trade (Development Regulation) Act, 1992 which, while intimating that import of toys was prohibited up to 23 rd June 2010, relaxed the prohibition to such toys as were in conformity with the standards prescribed in ASTMF963 or standards prescribed in ISO 8124 in (parts I-III) or IS 9873 or standards prescribed in each in EN 71 and accompanied by a certificate of conformance from the manufacturer that representative samples of the toys being imported had been tested and cleared by specified independent laboratory. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, in our opinion, the issue is one of determining whether the imported goods are toys or are sporting equipment in the form of 'paddling pools'. Learned Counsel, as well as Learned Authorised Representative, relied upon the definition of 'paddling pools'. Learned Authorised Representative also drew our attention to the description on the package containing the imported goods indicating the same to be 'paddling pools'. 5. We observe that a 'paddling pool' is one in which children can be introduced to the basics of swimming or water callisthenics; these would naturally be smaller and shallow version of swimming pools with sufficient water to enable the appropriate exercise without endangering the safety of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification, reliance is placed on the decision of the Panaji bench of the Hon'ble High Court of Bombay in Leukoplast (India) Private Limited and others v. Union of India and others [1985 (20) ELT 70 (Bom.)] holding '7. Reverting now to the main question before us, namely whether the Leukoplast product is a drug or a medicinal preparation, falling under Item 14E of the First Schedule of the Act, it will be convenient to advert to the said Item. Item 14E of the First Schedule reads as under. Patent or proprietary medicines not containing alcohol, opium, Indian hemp or other narcotic drugs or other narcotics other than those medicines which are exclusively ayurvedic, unani, sidha or homeopathic. Explanation I to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Entry itself and not in its dictionary meaning which sometimes is wide and covers things that are not at all envisaged for the purpose of the levy. Thus, we are unable to accept the submission of Mr. Patkar in this respect. 8. Further, drawing upon the decision of the Tribunal in Commissioner of Customs, Ahmedabad v. Picasso Exports [2005 (188) ELT 74 (Tri-Mumbai)] which sought to distinguish between a 'toy musical instrument' and 'musical instrument' for the purpose of classification thus '7. It is evident from the size and number of the articles imported (25,500 pcs of Electronic Organ Piano small size ) and the price at which they were imported, that they could not be regular musical instruments fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule. 9. We, therefore, hold that the disputed goods are not electronic organs - musical instruments, classifiable under Customs Tariff Heading 9207.10 of the Customs Tariff Act, 1975, but they are Toy Musical Instruments and Apparatus classifiable under item 9503.50. We, therefore, restore the order of confiscation passed by the original authority and set aside the impugned order-in-appeal on that count. However, in view of the fact that the value declared by the appellant is rightly held to be the transaction value, while upholding the order-in-original except as regards the declaration of invoiced value, we order that fine in lieu of confiscation which was ₹ 6,50,000/- be reduced to ₹ 3,50,000/- (rupees three lakhs fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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