Custom, Excise & Service Tax Tribunal
M/S Arihant Industrial Corpn. Ltd vs Commissioner Of Central Excise, ... on 1 November, 2016
IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. IV APPEAL NO. E/1868/06-Mum (Arising out of Order-in-Appeal No. BR/44/Th-II/06 dated 03.03.2006 passed by the Commissioner of Central Excise (Appeals), Mumbai Zone-I.) For approval and signature: Honble Mr. Ramesh Nair, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) =====================================================
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : No CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy : Seen
of the order?
4. Whether order is to be circulated to the Departmental : Yes
authorities?
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M/s Arihant Industrial Corpn. Ltd.
Appellant
Vs.
Commissioner of Central Excise, Thane-II
Respondent
Appearance:
Shri M.H. Patil, Advocate with
Shri Sachin Chitnis, Advocate
for Appellant
Shri S.V. Nair, Assistant Commissioner (A.R.)
for Respondent
CORAM:
HONBLE SHRI RAMESH NAIR, MEMBER (JUDICIAL)
HONBLE SHRI C.J. MATHEW, MEMBER (TECHNICAL)
Date of Hearing: 01.11.2016
Date of Decision: 14.12.2016
ORDER NO.
Per: Ramesh Nair:
The appellants are engaged in the manufacturing of various goods under Chapter 95 and claiming the same as sports goods and availing the exemption Notification No. 06/2002-CE dated 01.03.2002. As per the said Notification the sports goods falling under Chapter 95 are exempted from Central Excise duty excluding the articles and equipments for general exercise falling under the category of sports goods. The department observed that amongst other articles & equipments manufactured by the assessee on which exemption is claimed under the said notification as sports goods, they have also been manufacturing the goods viz. (1) Climbers - (includes various types of nets attached to frames which are similar to the ones used in obstacle course) and (2) Thriller Range (includes items like Balancing Beams, Rolling Barrel, Walking Barrel, Stationery Cycle, Rock N Roll Bar, Double Bar, Gliders, Loop Ranges, Horizontal Bars etc.). The adjudicating authority while adjudication the show-cause notice confirmed the demand by denying the exemption notification on the ground that these goods not fall under the category of sports goods. The adjudicating authority given findings that only such articles which are used for competitive games will fall under the category of sports goods. Therefore the goods in question, since not use for any games, are not sports goods. Being aggrieved by the adjudication order, the appellant filed appeal before the Commissioner (Appeals) which came to be rejected, therefore the appellant is before us.
2. Shri M.H. Patil, Learned Counsel for the appellant along with Shri Sachin Chitnis, advocate, submits that the product in question i.e. Climbers and Thriller are installed in the gardens/playground for the children for their plays and games; therefore it is clearly sports goods. He submits that the only exclusion for the purpose of exemption notification provided in respect of those goods which are used for general exercise. These goods are not used for general exercise but it is used by the children in the garden and playground for their sports activity. He further submits that as per Bureau of Indian Standards also the playground equipment for parks are covered under the category of sports goods. He further submits that as per the explanatory notes to HSN in respect of Heading 95.06 also equipment used in the children playground is classifiable as sports goods. It is his submission that in the appellants own case for the period April 1994 to December 1998, the demand of Rs. 2.22 crores were raised but the same was dropped by the Commissioner of Central Excise vide Order-in-Original No. 077/YGP-12/2000/M-III dated 28.03.2003. This order has been accepted by the department as the same was not challenged by filing any appeal. Moreover on the identical issue for the period 01.01.2005 to 31.12.2007 demand of Rs. 25.6 lakhs, for the period 01.10.2010 to 31.03.2012, demand of Rs. 4.67 lakhs and in the period 01.01.2013 to 30.06.2014 demand of Rs. 58.27 lakhs was dropped by the Commissioner (Appeals) and allowed the appeals of the appellant. In this regard he submits that since the demand on the identical issue has been dropped for the previous as well as the subsequent period and the same attained finality the demand in the present case will not sustain on the same line.
3. On the other hand, Shri S.V. Nair, Learned Assistant Commissioner (Authorised Representative) appearing on behalf of the Revenue reiterates the findings of the impugned order.
4. We have carefully considered the submissions made by both sides. We find that the products in question are Climbers and Thriller which are used for childrens play & games and are installed in playground & gardens. We observe that these goods are admittedly for childrens plays. Therefore as far as small children these are sports equipment for their play. We also observe that the lower authorities have contended that the sports which are played nationally and internationally only are the sports and play of the children in garden and playground, are not sports which we do not agree with the lower authorities. For every age there are different type of plays & games, small childrens sports is the games and plays which they play in the garden with the use of these equipment, therefore these are the sports activity for the children. As per the Bureau of Indian Standards also the following equipments have been categorised as sports goods.
STANDARDS PUBLISHED SI No. IS No. Title Reaffirmed Date Amd.
57IS 6869(Part 1 ):1973 Playground equipment for parks: Part I General requirements 05 2000 58 IS 6869(Part 2):1973 Playground equipment for parks: Part II Horizontal bars 05 2000 59 IS 6869(Part 3):1973 Playground equipment for parks: Part III Horizontal ladders 05 2000 60 IS 6869(Part 4):1973 Playground equipment for parks: Part IV Jungle gyms (or castle climbers) 05 2000 61 IS 6869(Part 5):1973 Playground equipment for parks: Part V Parallel bars 05 2000 62 IS 6869(Part 6/Sec 0) :2002 Playground equipment for park - Part 6 Swings From the above ISI standards it can be seen that the play equipment installed in the park for children play are indeed sports goods. The explanatory notes to HSN in respect of Heading 95.06 reads as under:-
(A) Gymnasium or athletic equipment, (B) Requisites for other sports and outdoor games (other than toys presented in sets, or separately, of heading 95.03), (1) to (11) ............................
(12) Equipment of a kind used in childrens playgrounds (e.g., swings, slides, see-saws and giant strides).
From the above it can be seen that equipment used in childrens playground are falling under the classification of sports goods falling under Chapter 9506. Therefore we do not have any doubt that the product in question that being equipment used in childrens playground are sports goods. We also find that there is force in the submission of the Learned Counsel on the fact that in the appellants own case for almost entire period except the period involved in the present case either the demand was dropped the demand of the original adjudicating authority was set aside by the Commissioner (Appeals). In all such cases the department had accepted the orders and no further appeal was filed. In such a situation present demand will not sustain on this ground also. As per the above discussion, we hold that the goods i.e. Climbers and Thriller used in playground and garden for the purpose of children plays are correctly classifiable as sports goods. There is no dispute that the said equipments are not used for general physical exercise, therefore the same are entitled for exemption Notification No. 06/02-CE dated 01.03.2002. The impugned order is set aside and appeal is allowed.
(Pronounced in Court on 14.12.2016) (C.J. Mathew) (Ramesh Nair) Member (Technical) Member (Judicial) Sp 2 APPEAL NO. E/1868/06-Mum