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TMI Blog2024 (3) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to the appellant to re-export these goods within 30 days of the order by payment of redemption fine of Rs.30,000/- under section 125 of Customs Act 1962 or order for the destruction of the same at the cost of the importer as per rules. A penalty of Rs.25,000/- was imposed under Section 112 (a) of the Customs Act 1962. Against such order, the appellant approached the Commissioner (Appeals) who upheld the same. Hence this appeal. 2. The Ld. Counsel Ms. Sobhana Krishnan appeared and argued for the appellant. It is submitted that the appellant is a proprietorship concern with Mr. Belle Krishna as the sole proprietor. The appellant is engaged in providing party decorations using rubber latex and foil balloons. Such decorations are usually made at birthday parties, public and private events or functions. 2.1. In the present case, the appellant imported various sizes of latex balloons, pumps, heart shaped 50 balloon decoration stand, arch shaped balloon decoration stand, star shaped balloon decoration stand, and round shaped balloon decoration stand and filed Bill of Entry No.2048232 dated 17.08.2022 ("subject Bill of Entry"). The subject goods were classifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act of improper importation of the subject goods without BIS Certificates, a penalty of Rs.25,000/-. 2.5. The Ld. Counsel argued that that the balloons under import are only for party decorations and never meant for use in play by children. The shipment contains balloons of size 5 inches, 12 inches and 19 inches. These balloons are for the purpose of decoration only. The balloons of 5 inches are too small a size to be used by children and the 12 and 19 inches are too large and hence can be used for decoration purposes only. If at all, it can be said that 9inch balloons are ideal for kids and the shipment doesn't contain this item. In any case, the goods being imported are used only for party decorations and never sold for use as toys to children. Hence, these balloons in the consignment are meant for party decoration only and cannot be considered as Toys. 2.6. It is submitted that the requirement of compulsory registration under BIS is applicable only for toys which are meant for use in play by children and the subject goods are never intended to be used as toys. 2.7. Further, it may be seen from the National Foreword to Indian Standard IS 9873 which is applicable to toys ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 022, had stated that holiday decorations that are primarily intended for ornamental purpose or Christmas decoration are not included in the scope of TQC Order. The Hon'ble High Court had noted the issue has been finally concluded in favour of the importer in view of the said communication by the competent authority of the Ministry of Commerce and Industries. 2.13. The above view has further been reaffirmed in the case of In Re: Bharat Balloon House, 2023 (9) TMI 727 - AUTHORITY FOR ADVANCE RULINGS CUSTOMS, MUMBAI. Therefore, it is humbly submitted that the ratio of the same is applicable to the present facts and the goods are not liable for confiscation as held in the impugned order. 2.14. The impugned order has also come to the conclusion based on the description of the goods as entered in the Bills of Entry. In this regard, it is submitted that the goods are described as Latex Balloons in the invoice and the classification of the goods is under Heading 9503 of the Customs Tariff which covers, "Tricycles, scooters, pedal cars and similar wheeled toys; doll's carriages; other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me to time to confirm to standard (IS 9873) by Notification dated 15.09.2020 SO 3146 (E) the same was made effective from 01.01.2021. 5. The case is gross violation of import policy. It is hazardous for use by little children as Toys. The decision relied by appellant cannot be applied to this case as the Balloons in the said case was of foil material whereas in the present case it is of latex material which is more dangerous. The Ld. AR submitted that the appeal may be dismissed. 6. Heard both sides. 7. The appellant has classified the imported balloons under CTH 9503 as Toys and balloons for the reason that as per Analytics Report 46/2021-22 dated 29.10.2021 issued by National Customs Targeting Centre, Mumbai, wherein it is stated that balloons are to be classified under CTH 9053. The said report did not make any distinction between toy balloons and decoration balloons. As per the Toys (Quality Control) Order 2020 issued by Department for Promotion of Industry and Internal Trade, Ministry of Commerce (DPIIT) applies to Toys designed or clearly intended or not exclusively for use in play by children under 14 years of age. In the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal filed by the respondent by referring to clarification issued by the Ministry of Commerce and Industry, Department for promotion of Industry and Internal Trade, Government of India dated 24th February 2022. The clarification was sought for by the respondent with regard to merit of inflatable party items / party decoration foil items. The clarification sought for was whether the said items would fall within the scope of the Toys Quality Control Order, 2020. By clarification dated 24th February, 2022 the said authority had stated that the holiday decorations intended for ornamental purpose of Christmas decoration are not included in the scope of the Toys (Quality Control) Order. Further, it was informed that the product imported by the respondent / writ petitioner under HSN Code 39269099 / 95059090 are not covered under the Toys (Quality Control) Order, 2020". 8. From the above, after appreciating the facts and following the decision as above, we are of the considered opinion that the order passed by original authority confiscating the goods and directing for re-export cannot be sustained. The impugned order is set aside. The goods are t ..... 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