ORDER

Per G.A. Brahma Deva : The point to be considered in this appeal is whether Serpent Eggs manufactured by the appellants are classifiable as Fire Works as held by the Department or as 'Others' falling under 3604.90 as claimed by the appellants. The claim of the appellants that items are classifiable under 3604.90 as Pyrotechnic toys other than fire works has been denied by the Assistant Collector holding that item is classifiable under, heading 3604.10 on the ground that it produces thick smoke upon its ignition and snake like ash emerges. While upholding the view of the Assistant Collector, the Collector (Appeals) observed that in view of the predominant trade parlance and acceptance of Serpent Eggs as 'fireworks' by other manufacturers, the classification made by the Assistant Collector is proper and correct. The relevant heading 36.04 and sub-headings are as follows :-

"36.04 Fireworks, signalling flares, rain rockets, FOG signals and other pyrotechnic articles. 3604.10 -Fireworks. 3604.90 -Others."

2. Arguing for the appellants Shri V. Sridharan submitted that product does not conform to the definition of 'fire works' given in Chamber's 20th. Century Dictionary nor provides entertainment through acoustic, luminous or smoke producing effects of their combustion, for classifying the item as 'fire works' under 3604.10. The product on combustion produce snake like ash which is a source of amusement to children. Hence this item is to be classified as Pyrotechnic toys and not as 'fireworks'. In the case of fireworks the firing is ensured by a firing powder, such as black powder, integrated into the article and fired by an electric fuse head or a primer fuse. He said that according to Explanatory Notes of HSN with reference to Tariff heading 36.04, the said heading covers Pyrotechnic articles capable of producing luminous, acoustic, gaseous, smoke-producing or incendiary effects including Pyrotechnic articles for amusement. He drew our attention to the relevant Notes which are as follows :-

"(1) Pyrotechnic articles for amusement:

(a) Fireworks (bombs, fuses, maroons, jets, candles, luminous torches, Bengal matches and lights, etc.) the purpose of which is to provide entertainment through the acoustic, luminous or smoke-producing effects of their combustion. Firing is ensured by a firing powder, such as black powder, integrated into the article and fired by an electric fuse head or a primer fuse.

(b) Pyrotechnic toys, such as caps for toy pistols (prepared in tapes, sheets, rolls or circular plastic rings) magic candles, and snaps for Christmas crackers. The combustion of these Pyrotechnic toys causes only limited effects."

He said that Note 1 (a) is not applicable to the item in question since firing is not ensured by firing powder nor provide entertainment through acoustic, luminous or smoke-producing effects. The Assistant Collector is not correct in giving finding that the product 'Serpent Eggs' on ignition gives heavy smoke amidst thick black spiral form of ash in the shape of black snake. The smoke is only an incidental but it gives amusement to the children in forming of snake shape and the fact that amusement or entertainment provided by the Serpent eggs is not through acoustic, luminous or smoke producing effect has been categorically accepted by the Collector (Appeals) but the Collector (Appeals) held that it is classifiable as fireworks since the item is understood in the common parlance as fireworks. The mere fact that product Serpent eggs was sold by the Traders of fireworks does not by itself be a reason for treating Serpent Eggs as fireworks and further Pyrotechnic toys are different from fireworks inasmuch as they do not provide entertainment through acoustic, luminous or smoke producing effect of their combustion. He explained the process of manufacture of Serpent eggs as that Coal-Tar is first nitrated with linseed oil and Nitric Acid. After this nitrated process is completed, the nitrated Tar Pitch is mixed with