9911796707
TMI Blog2024 (4) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 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 Authority classified the impugned goods under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified 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. 95062900 BCD-Nil CVD-6% 2.95069990 BCD-10% CVD-6% 3 C/41914/2014 ------ 9679681 dated 26.03.2013 1. General Sports Equipment- Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 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 questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified 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 is that M/s. Speedo International is a leading brand for swimming equipment and these items are supplied all over the world under internationally accepted classification under CTH 9506. 16. At this juncture, it is also important to refer to the Customs Notification No. 12/2012-CE dated 17.03.2012 which accords exemption to various goods from payment of Basic Customs Duty and Additional Duty and the relevant entry for Swimming related goods reads as below:- S.No. Chapter 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 eq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 specific heading would be 95062900 and not 95069990 which heading covers various outdoor games like boxing, badminton, hockey which are distinguishable from swimming. 21. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -- 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: 9506.91 -- Gymnasium or athletics articles and equipment 9506.99 -- Other The heading covers: (A) ....... (B) Requisites for other sports and outdoor games (other than toys presented in sets, or separately of heading 95.03) e.g.: (1) .......... (2) Water-skis, surf boards, sailboards and other water-sport equipment such as diving stages (platforms), chutes, divers, flippers and respiratory masks of a kind used without oxygen or compressed air bottles, and simple underwater breathing tubes (generally known as "snorkels") for swimmers or divers. 23.2 Thus HSN Notes clearly indicate Surf-Board, Sail Board, Chutes, under water swimming tubes (Snorkels), etc., are classified under CTH 9506. Swim Seats and Arm Bands which are used for swimming activity for kids are also covered under this Chapter Heading 9506 as these are akin to chutes, flippers, surf-b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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