9911796707
TMI Blog2004 (1) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by the respective benches, the matter was heard for disposal as per law. 2. The appellant contends that they are manufacturers of toys and games falling under Chapter 95 since 1986 and had been filing the classification list under Rule 173B in respect of each one of the toys and games from time to time and the Central Excise Department had been accepting and approving such classification list up to the year 1995 and thereafter had been acknowledging the classification declarations. It is their contention that in respect of 12 games manufactured and cleared by them from time to time, a show cause notice dated 20-11-2001 invoking larger period on the allegation of misdeclaration under proviso to Section 11A for the period November, 1996 to June, 2001 was issued by Additional Director General, DGCEI, Zonal Unit, Mumbai proposing to re-classify all the 12 toys/games from the Tariff Heading 9503.00 which was hitherto classified to the sub-heading 9504.90 of the tariff. After due consideration of the matter by the CCE, Panaji, Goa the impugned Order-in-Original has been passed holding that the appellants had misdeclared the goods earlier without giving the technical literature and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in private house and indoor games with the use of the table which is used in casinos, gambling house or public place of recreation. They used these boards with the enlarged items not for the purpose of pleasure and amusement which gives to the children, more so with competitive spirit which is in the nature of dog-eat-dog, cutthroat.., as defined in the Concise Oxford Thesaurus dictionary or for gambling purposes and aggressive in nature which is competitive and not played by children for the purpose of amusement. There is also an element of involvement of money when it is played in casinos and parlours. In this regard, the definition of the term Games , Toys , Fair , Funfair , Recreation , Competitive , Dragster , Stragego/ Stratagem , Leverage is relied from the extract of The Concise Oxford Dictionary of Current English . It is the appellants contention that the explanatory notes of the HSN and the examples given therein support the case of the appellants for classification under Heading 9503 which is meant for small replicas as reduced size ( scale ) models and similar recreational models, working or not; puzzles of all kinds are to be classified under 9503 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he items is put in a set which comprises of a paint, mould powder and mould also meant for children to make out moulds of toys and paint, the same would fall under 9503 in terms of examples given therein in Sl. No. 21, which clearly states that Collection of articles, the individual items of which if presented separately would be classified in other headings in Nomenclature are classified in this chapter when they are put up in a form clearly indicating their use as toys (e.g. instructional toys such as chemistry, sewing etc. sets) . He submits that they are removed as sets of reduced size for recreation purpose for children and not separately removed and hence their classification under separate chapter done with regard to plastic moulds under 3926 and paints under 8480 is not proper. He submitted that Tribunal in the case of O.K. Play India v. CCE, New Delhi - 2000 (121) E.L.T. 349 (T) has clearly held that toys are object of entertainment for the children and that can be educational and meant for development of skills. It is his contention that the order passed by the Commissioner (Appeals) which is not yet been challenged in the Order-in-Appeal No. C. Excise. Goa/BKS/16 and 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention for classification of items under Heading 95.03 and, therefore, that reasoning is given in Order-in-Appeal No. KKS/19 (19)/GOA/2002, dated 17-7-02 should be accepted. He pointed out that the items decided by the Tribunal in their own case where those items were used in the parlours, clubs, etc., which was rightly held to be classifiable under 95.04, as such they do not want to contest on the two items pertaining to Snakes and Ladder and Monopoly. He submitted that the Tribunal in their own case did not deal with other 10 items involved in the present appeal and also the items involved in Revenue s appeal. 6. He argued that the demands are also time-barred for the reason that they had filed the classification list and correspondence has been going on with the department for a long time and he referred to all the letters which are there on record and submitted on 30-10-96 to the Superintendent who had called for further details and samples by his letter which was submitted on 16-1-95 and 2-9-95. He submitted that the Asstt. Commissioner of Central Excise, Goa had also dropped proceedings in 1994 and as all the facts had been furnished and details given, there cannot be quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Commissioner in the impugned order is correct and is in terms of Apex Court judgment rendered in the Collector v. Wood Craft Products Ltd. (supra). He relied on the term common parlance appearing in page 709 of the Words and Phrases by S.B. Sarkar and submitted that in the common parlance, the items are all games and requires to be classified under Heading 95.04. She also relied on the term Game appearing at page 1351 of Words and Phrases including the term Toy appearing at page 3188. She also submitted that the demands are not barred by time as all the details required for classification including the literature and samples had not been furnished. Hence larger period is invocable and she relied on the following two judgments :- (i) Standard Pencils (P) Ltd. v. CCE, Madras - 2002 (145) E.L.T. 278 (S.C.) (ii) Khaitan Electrical Ltd. v. CCE, New Delhi - 2003 (156) E.L.T. 449 (S.C.) 9. In so far as the departmental appeal is concerned, she submitted that the order passed by the Commissioner (Appeals) is not in keeping with the tariff entries and items are not meant for children but games used in clubs and parlours. She submitted that Heading 95.03 excl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is monetary transaction involved and the person with most cash/least debt is the winner. Appears classifiable as Board game under CSH 9504.90 of CETA, 1985. 2. Games of Games A game Board, pack of cards marbles, pawns, token and 2 dice, ball Hooplah Set consisting of Base, holder and 4 rings, Pendulum set consisting of base, string weight and rotating peg. Golfing green; Ice 1 club 4 token and buffer for Rink Games, Bowling Pins This is a classic Game which contains 14 games which are played as per some set rules. Points earned through each game played by the player causes the movement of the pawns to the square. Appears classifiable like Board Game of Ludo under CSH 9504.90 of CETA, 1985. 3. Monopoly Game/play Board, Dice, Token, Card packs money card pack, etc. The game is played by moving the token from Go place in the Play Board according to throw of the dice. The aim of the game is to buy and rent or sell properties and the wealthiest becomes the winner. 4. Junior Monopoly Game Board, Dice, Pack of Cards, Pack of monopoly money cards, etc. It is similar to monopoly. The aim of the game is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As can be seen, the appellants have not contested the classification of items pertaining to Monopoly and Snakes and Ladders. Therefore, the items described in the table at Sl. Nos. 3 and 12 in the above table and its classification under Chapter Heading 9504.90 is confirmed. The Counsel also submitted that they have not disputed the classification from the beginning and have been clearing the items on payment of duty. In respect of classification of other 10 items, we notice from the description of the items, and the manner in which it is played, they are all toys meant for children to be played in the age group less than 12 years. They are replicas or miniature in size to the one which are used by adults for games on table or parlours games and pintables, billiards, special tables for casino games and automatic bowling alley equipment. The articles for funfair are also included therein. In the words used in the Tariff Heading 95.04 and keeping in view the Rule of Noscitur A Sociis, and the definition of these items in terms of relevant dictionary presented before us, it is very clear that they are all not toys for recreation purpose but are competitive games and for gambling purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plied the HSN notes. The order passed by him and findings recorded applies also to the present appeal also. 14. We also notice that the Asstt. Commissioner has also decided the classification of some of the items by Order-in-Original No. A.C./C. Ex, (Div)/88/94, dated 28-6-94 and Order No. A.C. C. Ex (Div) 105/94/329, dated 17-8-94. We have perused both the orders. We find that the items have been analysed individually and found that they are all toys and games for children meant for classification under Heading 95.03. The department did not file appeal against both the Orders-in-Original and therefore it cannot be said that such orders were incorrect. The classification pertained to 54 items, the department has reopened the classification only in respect of 12 items and it cannot be said that classification of 10 out of 12 items adopted by the other ACCE, Panaji, Goa and the Commissioner (Appeals) referred to above were incorrect and not applicable to the present case. The said orders were not appealed. The CEGAT s order dealt with a different item pertaining to Chess Board and Pieces, Chutes and Ladders which were used in parlours, clubs, etc. The items dealt with by the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not available in the games and sports shop in the market where items like cricket bats, nets, tennis and badminton rackets, foot-ball, hockey sticks, etc., are sold. These items are available only in Toy shops where children toys are sold. Thus in the commercial parlance these items are known as toys and not as games . (iii) Parlour games occurring in the Chapter Heading 95.04 means games which are played in game-parlours or clubs or office clubs. Generally games such as carrom, Ludo, chess, cards, only are played in such places. Thus such games are rightly included in Chapter Heading 95.04. But the items which are under our consideration, I have yet to see, being played in a parlour or a club. And therefore these items are not of the same class as that of carrom, ludo, chess, cards, etc., and cannot be classified as parlour games. (vi) These items also differ in many important respect with chess, ludo, etc. With chess board and pieces one plays the game of chess. With Ludo one plays game of ludo. One is not pretending anything while playing but plays actual games of chess and ludo. But with these board, pieces, cards, die, counters, pawns, stand, pilot, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 22, Mould and Paint, is also, similarly classifiable as a toy under Heading 95.03. 8. Coming now to item No. 22, Mould and Paint, the question involved is the classification of the transparent PVC film blister. The same cannot be classified under Sub-heading 8480.10, which covers only machinery and mechanical appliances and parts thereof. Heading 84.80 covers Moulding boxes for metal foundry, mould bases; moulding patterns, moulds for metals, etc. Only moulds for materials like metal, glass, rubber or plastics are covered here. The PVC film blister with cavities are not covered here, as these are not for the above purpose. These blisters are only a component of the toy Moulds and paints , classifiable under Chapter Heading 95.03. This item cannot be viewed as an article for conveyance or packing of goods, but it is a component of the toy mould and paint itself and is used in playing with the toy. This is therefore a component of the toy, classifiable under Heading 95.03 and not under Heading 39.23 as an article for conveyance or packing of the goods. 9. In view of the above, I set aside the impugned order-in-original and order classification of all the 22 items listed in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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