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TMI Blog2008 (6) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 attracting nil rate of duty under the tariff itself. The further issue for decision is whether the goods are branded goods for the purpose of determining eligibility to the benefit of SSI exemption under relevant notifications in force during the period in dispute and whether the extended period of limitation under the proviso to Section 11A of the Central Excise Act, 1944 is available to the department for the purpose of levy of duty and imposition of penalty. 2. In all four cases the adjudicating authority has classified the goods under Chapter-Heading 95.04, denied the benefit of SSI exemption, confirmed demands and imposed penalties, while the lower appellate authority has set aside the classification adopted by the adjudicating authority and classified the goods under Chapter Heading 95.03 as Toys, and in this view of the matter, he has not recorded any finding on the branded goods issue and the applicability of the extended period of limitation. 3. We have heard both sides and our findngs on the issues involved are recorded below. 4. Classification :- The goods manufactured by M/s. Venus Industries are intended to be played by two to six children. Around the World i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd/grid. It contains 40 smail plastic checkers with which a child supposed to play the said game by picking the checkers into the cavity between the plastic vertical double wall stand/grid so as to learn colour combination and/or arranging of checkers and/or counting of checkers. It is intended to be played by two players and the purpose to make a child understand colour differences and also to learn basics of arithmetic. 5. The goods in question are neither educational toys nor sports goods as contended by the respondents; but games played by more than one individual (child). The competitive element is very much present as all the goods involve winning or losing the game. HSN Notes to Chapter Heading 95.04 relied upon by the Revenue covers boards and pieces for games of chess, draughts, dominoes, mah-jong, halma, ludo, snakes and ladders, etc. In the case of a toy, only one individual/child is involved, and, therefore, there is no question of gain or loss and no element of competition. The fact that the goods in question are sold in toy shops does not automatically make them toys, as both toys and games are sold in toy shop and games sold in a toy shop are different and distin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will not place them under the category of toys and that they are more akin to furniture under Heading 94.01/94.03 of the Tariff, is distinguishable as it does not address itself to the issue in dispute in the present case, and therefore reliance upon this decision by the appellants is misplaced. 7. The decision in Funskool (India) Ltd. v. CCE, Goa 2004 (166) E.L.T. 241 holding inter alia that the game Upwards - word building game played by arranging letter tiles on the game board and forming meaningful words and scoring points thereon, is classifiable under Heading 95.03 as in common parlance, it is used by children as toys and games and sold in the toy shop, also does not advance the case of the appellants for the reason that sale in a toy shop does not automatically make the sold item a toy, as both toys and games are sold in a toy shop, and games sold in a toy shop are different and distinct from sports goods which are sold in a sports goods shop - therefore the fact that a game is sold in a toy shop will not by itself make it a toy. Further, we note that in paragraph 17 of the Funskool decision cited supra, the Tribunal holds that it is not the case of the department that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs in the same manner as on the board games, on the letterheads of M/s. Shadilal Sons. 9. The plea raised that the names of the games were brand names of the manufacturers/respondents is a new factual plea and therefore cannot be considered at this late stage, when it was never their case before the adjudicating authority that the goods bore their brand name - before the Commissioner (Appeals) such plea was raised but there is no finding thereon for the reason that demand was set aside as a result of classification of the goods in question under Chapter Heading 95.03. 10. The decisions in the case of DCI Pharmaceuticals Pvt. Ltd. v. Supdt. of Central Excise, Panaji - 2000 (115) E.L.T. 45 (Bom.) and Om Enterprises v. CCE, Pune - 2000 (118) E.L.T. 127, relied upon by the learned Counsel are distinguishable on facts - in the first case, the carton in which the goods were packed, bore the logo of the manufacturer and also bore the logo Indoco of the marketing company, Indoco Remedies Ltd., and in the second case, fans manufactured by the appellants bore their brand name, in addition to a metal plate indicating their marketing and servicing by Rallis India Ltd., while in the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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