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TMI Blog2024 (4) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 specific heading would be 95062900 and not 95069990 which heading covers various outdoor games like boxing, badminton, hockey which are distinguishable from swimming. The impugned orders have erred in classifying Sea Squad Swim Seats, Bio-Fuse Fitness Fin and arm Bands under 95069990 as they were meant for recreation of babies/ kids in relation to swimming and the classification of these items under the category of outdoor games under CTH 95069990 is legally incorrect. CTH 95069990 falls under 950691 which covers Articles and Equipment for general, physical exercise, gymnastic or athletic . Once having agreed that the Swim squad seats, bio fuse fitness fin and arm bands meant for kids to remain afloat in water, it cannot be thereafter held that these items can be classified for use in Outdoor games - Generally, swimming is considered as a sport rather than a game. It does n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder. 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 Authority classified the impugned goods under CTH 39269099 (BCD-10% and CVD-12%) for assessment under merit rate of duty. Aggrieved by the impugned Order-in-Original/ assessment order, the Assessee preferred an appeal before the Commissioner (Appeals) who partly allowed the appeal by setting aside the Order-in-Original/ assessment order but reclassified the imported goods under 95969990 (BCD-10% and CVD-6%). Hence these present appeals came before this forum. The Department also challenged the above Orders-in-Appeal vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 95062900 BCD-Nil CVD-6% 2.95069990 BCD-10% CVD-6% 3 C/41914/2014 ------ 9679681 dated 26.03.2013 1. General Sports Equipment- Sea Squad swim Seat 2. Swimming Aids- Seat Squad Arm band 95062900 39269099 95069990 BCD-Nil BCD-10% BCD-10% CVD-6% CVD- 12% CVD-6% 9921101 dated 23.04.2013 1. Swimming Goggles of various Types 90049090 39269099 95069990 2. Sea Squad Swim Bag Seat 95062900 BCD-Nil CVD-6% 39269099 95069990 3. Other headgear of rubber /Plastics 65069100 39269099 95069990 4. Fabric Hats-Pace Cap 65050090 39269099 95069990 5. Other Headgear of rubber or Plastics 65050090 39269099 95069990 6. Swimming Aids-Bio Fuse fin 95062900 39269099 95069990 7. Swimming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 paddles under 95062900 in the impugned order by considering that swimming is a water sport and any equipments required/ meant for swimming will come under the category of water sports, ought to have extended the same logic for the sea squad swim seats, bio-fuse fitness fin and arm bands as they are used only for swimming. v. That the impugned order had totally erred in classifying head gear, fabric hats and swimming goggles under CTH 95069990. Instead goggles are classifiable under 90049090, headgear under 65069100, fabric hat under 65050090 which are specific headings for these items which was never disputed by the Department or the Assessee. 7. 1 The Ld. Advocate Shri R. Nagaraj representing the appellant has argued that:- i. CTH 9506 covers articles and equipments for swimming pools and paddling pools and CTH 95062900 specifically covers other water sports equipment. ii. The authoriti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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 Chapter 95. ii. The fact remains that the meaning of sports and games places more stress on the aspect of competitiveness, contrast, match, etc. played according to rules, thus excluding the sea squad swim seat coming anywhere near CTH 95. iii. The Appellate Authority has dwelled upon the technicality of six digit and eight digit classification of the goods under question and has concluded that once an item is covered under the heading under a four digit entry it has to be necessarily accommodated under the succeeding 6 digit and further under 8 digit entry. This conclusion is borne out of a pre-conceived notion that the goods are nothing but items of sports and games and would fall under CTH 95. iv. The conclusion that squad swim seat and arm bands are meant for Unisex and hence are meant for kids who take swimming as recreation and thus the impugned goods are classifiable under CTH 95069990 is incorrect. Sea Squad and arm band can t be equated and the appellate authority has mis-interpreted the mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y for swimming related articles and quipment. 14.1 In order to decide the classification of Swim Seats, Arm Bands and Bio Fuse Fitness Fin, etc., the following Chapter Headings of Customs Tariff Act, 1975 are to be examined in detail. 14.2 The Original Adjudicating Authority has classified the imported goods under CTH 39269099 which is broadly categorised as other articles of plastics and articles of other materials mainly basing on the materials used for manufacture of these articles. Tariff Item Description of goods Unit Rate of Duty Standards Preferential areas 3926 Other articles of plastics and articles of other materials of the headings 3901-3914 .. 39269099 ---other .. Kg. 10% - 14.3 However, we find that Lower Appellate Authority has classified the disputed goods viz., Swim Seat, Arm Band, etc. under 95069990 which reads as given below:- Tariff Item Description of goods Unit Rate of Duty Standards Preferential areas 9506 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 equipm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Heading or Sub-Heading or Tariff Item Description of goods Standard rate Additional duty rate Condition No. 503. 9506 (i) Snow-skis and other snow-ski equipment (ii) Water-skis, surf-boards, sailboards and other water-sport equipment Nil - - 17. The words used under CTH 95062900 are water-skis, surf-boards, sailboards and other water-sports equipment. Water sport equipment means any equipment, contrivance, frame or other device that one or more persons may lie, sit, or stand upon or in, and which is primarily for use in or on the water for pleasure, recreation or sports. 18. The Ld. Advocate for the Appellant has enclosed the photographs and write-up on Swim Seats, Bio Fuse Fitness Fin, Tech Paddle and Power Paddle. The sea squad swim seat is basically used by kids in kid-pools to remain afloat in water. Likewise, the imported arm bands and bio fuse fitness fins are for use by kids for swimming activity. He has contended that the subject imported items to be considered as water sports equipment. Further, he has submitted that, once an item is covered under the heading under a four digit entry it has to be necessarily accommodated under the succeeding 6 digit and further under 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment for general, physical exercise, gymnastic or athletic . Once having agreed that the Swim squad seats, bio fuse fitness fin and arm bands meant for kids to remain afloat in water, it cannot be thereafter held that these items can be classified for use in Outdoor games . In the first place it cannot be said that swimming is only Outdoor game . Swimming can be either indoor or outdoor. Generally, swimming is considered as a sport rather than a game. It does not mean that no game is played in swimming. Water polo is played in water which is considered as a game. Further the items under consideration cannot be used for any of the Outdoor games specifically listed out under 950691. These items can only be used for swimming and so the classification under 95069990 is incorrect. We are of the considered opinion that these items are more appropriately classifiable under 95062900. 22. The Ld. Advocate has submitted that in the Appellants own case for the entire period, excluding the above disputed Bills of entry, either demand was dropped or the demand was set aside by the lower appellate authority and in all such cases the Department never had preferred any appeal. In this regard, we f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under 9506.29 as water sports equipment though meant for use for children. 24. The Ld. Advocate has referred to the decision in the case of Arihant Industrial Corporation Ltd. Vs. Commissioner of Central Excise, Thane-II [2017 (357) ELT 471 (Tri.-Mum)], which held while deciding on Climbers and Thriller used for Children s play and games installed in playground and gardens, as follows:- ------ We observe that these goods are admittedly for children s plays. Therefore, as far as small children these are sports equipments for their play. We also observe that the lower authorities have contended that the sports which are played nationally and internationally only are sports and play of the children in garden and playground, are not sports which we do not agree with lower authorities. For every age there are different type of plays and games, small children s sports is the games and plays which they play in garden with the use of these equipments, therefore these are the sports activity for the children From the above it can be seen that equipment used in Children s playground are falling under the classification of Sports goods under CTH 9506. Drawing similar analogy, we find that sea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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