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TMI Blog2019 (5) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... the classification as has been held by the Commissioner (Appeal). Penalty - HELD THAT:- The appellants have in the Bill Of Entry declared the goods by describing them correctly as per the import documents. Revenue has not disputed the description/ declaration in respect of the goods. Only dispute being with reference to classification of the goods. It has been held by various authorities that misclassification cannot be a reason for invoking penal provisions against the importer. The order of Commissioner (Appeal) classifying the imported goods under heading 34070010 is upheld, but the penalty imposed on the importer under Section 112(a) of the Customs Act, 1962 is set aside. Appeal allowed in part. - Appeal No. C/993/2010 - A/8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per invoice No NARA2009/33/KORE dated 23.06.2009 for an invoice value of US$ 33770.88. They claimed classification under CTH 95030090. 2.2 After examination of the goods on first check basis, the assessing group was of the view that they had misdeclared the CTH as 95030090 instead of 34070010 to avoid payment of CVD @ 8%. 2.3 Thus revenue was of the view because of misdeclaration of Classification to avoid CVD, the goods are liable for confiscation under Section 111(m) of the Customs Act, 1962 and appellants were liable to penalty under Section 112(a) of the Customs Act, 1962. 2.4 The matter was brought to notice of the importer (appellant) and after considering the submissions made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 95030090. [Bill Of Entry No 758703 dated 23.01.2009]. v. The imported goods is used exclusively by children for entertainment by making different shapes by help of different moulds. The product is marketed and sold as modeling clay for children s play and entertainment. It is settled law that irrespective of technical/ chemical composition, the classification should be determined as per the trade understanding and recognition. [Metagraphs Pvt Ltd [1996 (88) ELT 630 (SC)], Shon Ceramics Pvt Ltd [191 (52) ELT 608 (T)], Calcutta Chemical Co Ltd [2008 (232) ELT 637 (T)]} vi. The imported goods thus were correctly classifiable under CTH 95030090 as claimed by them. vii. Penalty imposed on them is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Thus, the question of classifying the modeling paste under the category of other toys or recreational models does not arise. The appellants have argued that the modeling paste and modeling clay are two different products as the paste is nothing but an adhesive which can be used only once and looses its existence of paste after its use whereas the modeling clay does not have any characteristics of glue or adhesive and can be used for a number of times. It is observed that the Explanatory Notes describe the characteristics of modeling paste falling under heading 34.07. As per the Notes, modeling pastes are plastic preparations generally used by artists for making models and also by children for amusement purposes. Assorted modeling pastes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Praj Industries 2009 (242) ELT 430 (Tri.-Mumbai) has held that Explanatory Notes to HSN are safeguide and aid for ascertaining true meaning of any expression used in the tariff. The Notes are not only of persuasive value but are entitled to greater consideration. In the light of the above discussion, the modeling clay for children is correctly classifiable under CTH 34070010 as held by the adjudicating authority. 5.3 We also refer to terms tariff entry in headings 3407 and 9503 which are as follows: 3407 MODELLING PASTES, INCLUDING THOSE PUT UP FOR CHILDREN S AMUSEMENT; PREPARATIONS KNOWN AS DENTAL WAX OR AS DENTAL IMPRESSION COMPOUNDS , PUT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of all kinds: 95030010 --- Of wood 95030020 --- Of metals 95030030 --- Of Plastics 95030090 --- Other 5.4 From plain reading of the terms of headings under consideration we find that heading 34070010 is more specific for modeling pastes which in our view will include the clays which are used for making models for amusement of children. Since this heading ..... X X X X Extracts X X X X X X X X Extracts X X X X
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