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TMI Blog2014 (6) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... and involves skill and its outcome depends mainly upon the skill of the player. There is also an element of competitiveness. - this game has to be classified as a game under sub-heading 9504.90 of the Tariff. Other three games – ‘Chip N Dale’, ‘Duck Tale Disney’, and ‘Rally’, all these games are ‘board games’ i.e. are the games which involve movement of pieces on a premarked surface called ‘Board’ according to a set of rules and usually have a goal which a player aims to achieve. The contention of the appellant is that since in ‘Chip N Dale’, ‘Duck Tale Disney’ and ‘Rally’, there is no element of skill and outcome of these games is dependent only on chance, these games are purely for amusement of children and hence the same have to be treated as ‘toys’ covered by Heading 95.03. - this plea of the appellant is not correct. In terms of the criteria for ‘Games’, as prescribed by the Apex Court in its judgment in the case of Pleasantime Products Vs. CCE Mumbai-I (2009 (11) TMI 5 - SUPREME COURT), this game, which is a board game, has to be classified as a game under sub-heading 9504.90 of the Tariff. In view of majority order, the following items are classifiable as Toys ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Rule 173B of the erstwhile Central Excise Rules, 1944 in respect of the Toys and Games and classification lists were duly approved and the Declarations were acknowledged by the Department. The present proceedings were initiated after filing of classification declaration No. 1/2000-2001 dated 1.4.2000. The Assessee by their letter dated 19.8.2000 furnished the Department detailed product literature-cum-instruction sheets, how to play the games. On 17.11.2000, the Central Excise officers visited the Assessees factory and after scrutiny of the products, it appears that some of the items could be classified under Sub-Heading No.9504.90 of CETA, 1985 @ 16% ad valorem instead of 9503.00 nil rate of duty as claimed by the Assessee. 2.1 A show-cause notice dated 1.5.2001 was issued by the Range Superintendent of Central Excise, Panaji, Goa, proposing to classify 1 - 21 items under sub-heading No. 9504.90 and the item No. 22 namely Mould Paints under sub-heading 8480.10 chargeable to 16% ad valorem and to amend the classification/declaration No. 1/2000 dated 1.4.2000. It has also proposed demand of duty of Rs.9,04,444.37 along with interest and penalty for the period 1.4.2000 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce games are categorically classifiable under Heading No. 95.04 with specific mention of Snakes Ladders . The names of the items are as under:- 1. Pay Day 2. Games of Games 3. Talespin 4. Match Move Memory 5. Upwards 6. Pictionary 7. Rally 8. Go to the head of the class 9. Chip N Dale 10. Monopoly 11. Junior Monopoly 12. Snakes Ladders 2.4 It appears that the Assessee admitted the classification of Snakes Ladders before issue of Show Cause Notice and the item Monopoly after issue of Show Cause Notice under sub-heading 9504.90. It was clarified by the Assessee that they were manufacturing more than hundred items of toys and games and wrong classification was escaped from their notice. They paid duty along with interest. 2.5 In the meantime, the Commissioner (Appeals) by Order-in-Appeal dated 17.7.2002, set aside the aforesaid adjudication order dated 28.9.2001 passed by the Assistant Commissioner of Central Excise, holding that all the 22 items listed in the said adjudication order would be classified under sub-heading 9503.00 of the CETA, 1985. Revenue filed Appeal No. E/722/2003 before this Tribunal against the said order pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise, Mumbai - I, in which we have delivered the judgment today. The question in both sets of civil appeals, however, is common as far as the game Scrabble/Upwords is concerned. 2. In this batch of civil appeals filed by the Department we are concerned with classification of 12 items falling within the declaration filed by M/s. Funskool (India) Ltd. 3. We make it clear that the following three items are classifiable under Heading 95.04 of the Central Excise and Tariff Act,1 985 ( CETA , for short). They are as follows:- (i) Snake and Ladder (ii) Monopoly (iii Scrabble/Upwords (in terms of our judgment delivered today in M/s. Pleasantime Products (supra) 4. In our judgment in M/s. Pleasantime Products (supra),we have broadly indicated the tests to distinguish toys, puzzles and games in the context of Chapter 95 of the CETA. The tests applied by the Department, namely, age of the player, is not correct as indicated in our judgment in M/s. Pleasantime Products (supra). Therefore, we remit this case to the Tribunal for de novo adjudication in accordance with law. It is made clear that the Tribunal will decide the controversy only with regard to nine out of 12 items. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ble Supreme Court had already decided three items in favour of the Revenue insofar as it stand classified under Chapter 95.04. The Hon ble Supreme Court directed the Tribunal to decide the present appeals by applying the tests as enunciated by the Hon ble Court in the case of Pleasantime Products (supra). Thus, the Tribunal has to decide the matter as per the specific direction of the Hon ble Supreme Court. 3.1 It is submitted that in Pleasantime Products (supra), the Hon ble Supreme Court discussed the scope of different Headings of Chapter 95 at para 8 9 and also examined the scope of toys and game at para 11 and concept of toys at paras 20 and 21. It is finally observed by the Hon ble Supreme Court that the tests are as under:- (a) Outcome is pre-determined in a puzzle but not in a game (b) There will be clues in a puzzle and not in a game (c) Luck lacks in a puzzle, unlike in a game (d) Element of chance and skill is absent in a toy 3.2 He submits that applying the above tests of Pleasantime Products (supra), it would be seen that all the 31 items are game and classifiable under Heading 9504 for the reason that the element of chance and skill are present, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature of kits for building structures, constructor sets, colour mosaics and educational jigsaws? (paras 21 and 22) (e) Whether the items/products are tools of amusement? (para 23) (f) Whether the items/products have the element of chance and skill? (v) There is a chance of overlapping the items games/toys in the various features. In that case, the Hon ble Court at para 23, held that the test of pre-dominance would apply insofar as skill was required in jigsaw puzzles and educational toys, these would remain puzzles and toys and not games. Similarly, in construction kits, skill is involved, but the predominant intentions are only recreation and stimulation of child s thinking. Relied upon the decision of the Hon ble Supreme Court in the case of BSNL Vs. Union of India - (2006) 3 SCC 1, paras 43 45 where it has been held that a composite contract could not be broken up. If the party did not question separate rights arising out of the contract, the test to decide whether contract is one of sale or service has to be determined by dominant nature test. It is contended that the predominant nature of the item is relevant to decide whether an item is game or toy. The item Snakes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind that Show Cause Notices dated 1.5.2001 and 5.11.2001 proposed to classify 22 and 12 items respectively under Sub-Heading 9504.90 chargeable to 16% ad valorem duty. The Assessee had not disputed the classification of Snakes Ladders and Monopoly in Notice dated 5.11.2001 under Sub-Heading 9504.90. The Hon ble Supreme Court also upheld the classification of the said two items and Scrabble/Upwards (mentioned in Show Cause Notice dated 5.11.2001) under Sub-Heading 9504.90 of CETA, 1985. It is seen that 5 (five) items are common in both Show Cause Notices, such as:- Pay Day, Games of Games, Tale Spin, Chip N Dale and Junior Monopoly. Thus, the dispute relates to 26 items out of 34 items as proposed in both the show-cause notices. 5.1 The Hon ble Supreme Court by judgment dated 12.11.2009 remitted these appeals to the Tribunal for denovo consideration in accordance with law. Subsequent order dated 25.1.2010, the Hon ble Court re-dictated the earlier order for the sake of clarity and remitted the cases to the Tribunal with a direction to examine as to whether each of 31 items (out of that 5 items are common in both the notices) would stand covered by Sub-Heading 9504.90 or 950 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toys , Heading 9502 covers dolls whereas Heading 9503 covers other toys; reduced-size models; puzzles of all kinds . In sub-heading 9503.00, the expression other toys indicates that all toys other than wheeled toys and dolls would come under sub-heading 9503.00. In a way sub-heading 9503.00 is a residuary to sub-headings 9501.00 and 9502.00. According to the assessee, sub-heading 9503.00 in turn covers three separate and distinct items, namely, other toys; models; puzzles of all kinds. 6.1 According to the learned Authorized Representative for the Revenue, all the items in dispute are games and covered under Heading No. 95.04. Explanatory Notes of Heading 95.04 of HSN are as under:- This heading includes: (1) Billiards tables of various types (with or without legs) and accessories therefor (e.g. billiard cues, cue rests, balls, billiard chalks, ball or slide type markers). But the heading excludes mechanical counters (roller-type and the like) (heading 90.29), meters which employ a clock, movement to indicate the time in play or the amount payable based on that time (heading 91.06) and billiard-cue racks (classified in heading 94.03 or according to their constituent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Encyclopedia Americana, educational toys includes kits for building structures such as bridges and geodesic domes. Miniature railways on tracks are educational toys. However, with the change in educational methods in the 20th century the pattern of toys has undergone a change. Advance thinking in child welfare has influenced the shape of toys and special standards of safety and hygiene are enforced today. Kindergarten methods have influenced the pattern of toys and introduced building blocks and constructor sets, colour mosaics and educational jigsaws into the definition of the expression educational toys . However, in 20th century also soft toys remain popular like teddy bear . In 20th century vinyl plastic and foam rubber has revolutionized the toy industry and has communal toys - climbing frames, splash pools and sand trays. 21. Thus, going by the dictionary meanings of the word educational toy one finds that educational toys remain even today tools of amusement. They remain an object for a child to play with. One needs to apply the predominant test in such cases. In the present days, the toys and games of children are not always mere items for fun and amusemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... each state s important industries and product which you buy and sell. At the end of the game, all players count their money. The player with the most money wins the game. Spin the transport dial (marked with 1, 2, 3 etc.) The player who spins the highest number goes first. Players move towards the state of their choice which contains and opponents product disc. Thus, there is clue given. You may move through any state regardless of whether or not there is another player s truck or product disc on that space. For example, the player with the blue truck starts in Ohio and moves by spins of the transport dial to Florida where there is a red disk. When the blue player reaches Florida, the red player says that he is selling oranges. The blue player spins the money dial and pays the red player $500. The blue player puts the red disk in his truck and draws a card that reads Maine . He moves to Maine and when he reaches his destination, he puts the card on the bottom the pile. The game continues until all of the product discs have been removed from the board. It appears that the outcome is predetermined. There is no skill. It would give knowledge to the children about different States of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of playing pieces is governed by the outcome of the thrown dice. The player plays as per the direction of the space where the playing piece lands. There 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. This has elements of chance / luck and there is no fixed outcome. Thus, it merits to be considered as a GAME According to Assessee:- Educational Toy - The game is played by rolling dice. Players are given a certain denomination of money and they incur expenditures or get income as per the games rules. When they land on a pay day space, they must make payments or get money back. At the end of the game, a player with the most cash wins the game. The outcome is predetermined. Clues are not given. There is no skill, only chance Finding:- Game rules indicate a word about deals and high finance. Way to get ahead financial as to make deals. So take advantage wherever you go. The time will probably come when you do not have enough money on hand. By a deal or to pay your bills, pay a neighbor or make a charitable division or instructed to make then take out a loan. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may not share space. If you land on the opponents car, move ahead to the next vacant space. Each player chooses a car and places it on the start space. Each player rolls the dice. Play continues clock wise. It gives a lesson to develop a property, you must land on the appropriate land board spaces. No clue is given. Skill is required to ask for payment when someone lands on entrance to wait on your hotels etc. The element of competition is dominant, no fixed outcome. There is chance or luck. It is to be considered as game. (B) TOY : - The learned AR on behalf of the Revenue submits that all these items are board and dice games and the outcome is not predetermined. There is an element of luck/chance and skill. These items may be considered as game. On the other hand, the learned Senior Advocate on behalf of the Assessee submitted that after considering the nature of the toys, there is a chance of overlapping of games and toys. In that case, it would be examined by applying predominance test as held by the Hon ble Supreme Court. He illustrated his submission that a set of plastic cricket bat with ball available in the toy shop is played by the children for amusement and fun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eness. In a TOY , the children are enjoying fun and amusement along with developing his imagination and stimulating his thinking. Such as, while playing LUDO, Chess Board Game, the persons are in a competition to win the game with their skill and luck/chance as the outcome is not predetermined and the fun and amusement are not dominating therein. But, the same board and dice are used in the games of Fox Geese, Rally etc., the children are primarily enjoying the fun and amusement insofar as how many Geese are captured by fox during the course of playing of the game. Thus, it would be required to consider the nature of the game on the basis of pre-dominance test, as to whether the essential factor is mere amusement and fun or there is competitiveness only. (8) TRAVEL LUDO (9) TRAVEL CHINESE CHECKERS (10) TRAVEL CHESS DRAUGHTS All these items are similar nature and therefore all are taken up together. According to Revenue:- These are improved version of Card Board Ludo, Chinese Checker and Chess. Pieces are moved as per the outcome of Dice. These can be played while Traveling. HSN has clearly specified Ludo, Chinese Checker and Chess as a Board Game of CSH 9504. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e considered as board game and classifiable under Heading 95.04. (11 CHIPS N DALE:- (12) DUCK TALES DISNEY:- (13) DISNEY SORRY:- According to Revenue:- All are a Board Game like Ludo, Snakes Ladder (as mentioned in HSN notes). In Chips N Dale, Board has specific directions like Trade places, Go To any steel etc. As per the outcome of Dice, pawns are moved which follow further direction as mentioned for the landed spaces. Player to build the machine with 6 Cards wins the game. In Duck Tales Disney, movement of pointer on the spinner governs the movement of the playing pieces. The rules of play is like Snakes and Ladder. In Disney Sorry, the movement of the playing pieces is governed by the directions given on the picked cards. All are classifiable under CSH 9504.90 CETA, 1985. It has elements of Chance/Luck and no fixed outcome. So, it merits to be considered as a GAME. According to Assessee:- All are toys. In Chip N Dale, players must move around the board, as per the dice and collect six machine parts to complete a machine. The first player to do so is the winner. The game is entirely based on dice and no skill is involved at all. The outcome is predetermine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplete the magic machine with six cards wins the game. In order to win the game you must be the first player to build a magic machine. Your machine will be made up of six machine parts with various signs as indicated in the game board steps. Clues are given in machine postcards. The outcome is predetermined for building the machine. There is no skill, only chance. (iii) The label of the game box of Duck Tales Disney indicates join Uncle Scrooge and his nephews on a Tropical island treasure hunt . It is an amusement to children that Uncle Scrooge and his nephews are after a tropical island treasure and to cross various hurdles like wild animals, sea etc. The object of the game is to put the first player to reach the finished steps with a treasure token. At first the players should move the building pieces towards the treasure space to collect their tokens. After collecting a token, each player makes a dash for the finished steps: move the building piece as follows:- * You can move in any direction along the path but never move onto the same space twice on one turn. * You may pass other players playing pieces, as you move, if you end your move on a space occupied by anoth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... game in which the player controlling the fox tries to capture as many geese as possible, and the player controlling the geese tries to trap the fox. The outcome is predetermined. There are no clues. There is no chance, only skill. Finding:- The label of the game box indicates that the game is on, fox vs geese, but who will get foxed ? For the player playing for the geese, the aim is to try and catch the fox and for the player playing for the fox, the aim is to try to capture as many geese as possible so that not enough geese are left on the board to be able to capture the fox. The Geese wins if it captures fox completely and the fox wins if it captures as many geese. No skill is required. The label of game box, instruction of simple play rule would show that it is mainly giving fun and amusement of children to capture fox or geese and it is not required calm and cool mental state and ability like Draught. It cannot be considered as game. (15) LEVERAGE According to Revenue:- Board Game of strategy similar to Draught. As Draught is classifiable under CSH 9504.90 as per HSN notes. The product appears classifiable under CSH 9504.90 of CETA, 1985. To be considered as a G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d therefore there is a chance. There is a strategy hit insofar as when you peck free ticket booth chance card and have to replace the players ticket booth, choose the player who is farthest ahead in the game. Thus, it is like monopoly as decided by the Hon ble SC against the Assessee, classifiable under Heading 95.04. (17) RALLY According to Revenue:- It is a table game. The aim is to be the player who reaches the finish with the car. The game is played by putting the start and finish cards on the table and by taking turns in throwing the dice to move the cars forward. It has elements of Chance/Luck, No fixed outcome, No clues. Thus, it merits to be considered as a game. According to Assessee:- Toy - This is a reduced size model of a race cars. Conditions laid down by SC cannot be applied, since the case is not that it is a puzzle . Finding:- The game rules show that the aim of the game is to be the first to reach the finish with your car. Take the Start / Finish card and the turning point card from the card stack. The cards give the clues of picture of bull, geese, sheep etc. There is a chance but no skill. The player who is the first to arrive with hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l additive to form a smooth paste without any lumps. Special additive is provided to make the moulded object strong. Pour the paste into the mould. Before the paste hardens, place a magnet on the mould. The magnet should be placed in such a manner that half of the magnet is immersed into the mould while the other half remains outside. Allow the paste to dry for a few hours, preferably under sunlight. Early removal may lead to the breakage of the moulded object. Carefully remove the hardened plaster from the mould. Colour the moulded object using the paint and brush provided and unfurl your creativity. It is seen from the product literature that it would develop the creativity of the children by making different items of fruits and vegetables. It cannot be considered as game. Sub-Heading No. 8480.10 provides Moulding boxes for metal foundry . The Mould Paint cannot be used for metal foundry. (C) TOY: REDUCED SIZE MODEL:- Sub-heading 9503.00 of CETA, 1985 coveres other toys ; reduced size (scale) models and similar recreational moulds . Explanatory Note (B) of Heading No. 95.03 of HSN provides:- Reduced size ( scale ) models and similar recreational models. (20) GAM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peg. The instruction of play of Travel Snakes Ladders are similar to Ludo as stated above and also similar to Snakes Ladders. Hence it is to be considered as game. (D) FOLLOWING ITEMS CLAIMED AS PUZZLE:- In the case of Pleasantime Products (supra), the Hon ble court examined the Puzzle as under:- 11. The difference between a game and a puzzle is brought out by three distinct features, viz., outcome, clue-chance and skill. In a puzzle outcome is pre-determined and fixed. It is not so in Scrabble . For example, in crossword, outcome is pre-determined or fixed. In a crossword puzzle, there is a grid of squares and blanks into which words crossing vertically or horizontally are written according to clues. [See: Encyclopaedia Britannica]. Similarly, a jigsaw puzzle is a contrivance for testing ingenuity. In jigsaw puzzle there is a set of varied, irregularly shaped pieces, which when properly assembled form a map or picture. These are examples to demonstrate that in a puzzle the outcome is fixed or pre-determined which is not there in Scrabble . A person solving a puzzle, unlike games, does not aim at wining by scoring more points but aims at arriving at the solu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... H 9504.90 1985. To be considered as a GAME. According to Assessee:- Puzzle - This is a set of cars going through a course that can be set up like a jigsaw. Since the cars are mechanical toys, this is clearly classifiable under 9503. This is also a reduced size model. Finding:- The product literature indicates the great dragster race game of speed and skill. Each player controls a team of four racing cars. The winner is the player who succeeds in getting his team of four cars across the finishing line first. Both players race their cars at the same time. Players should steady the track by placing their left hands alongside the raised surface of their opponents track. Once the race has begun, a player may not touch his cars with his hand unless a car straddles a track or jumps lanes. In this case, the car must be returned to its starting position before that player continues. Note (9) of Heading No. 95.04 of HSN includes sets comprising slot-racing motor cars with their track-layouts, having the character of competitive games . The product literatures shows it is a competitive car racing in sets, would cover under Heading No. 95.04. (24) STRATEGO According to Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vance to the finish square and correctly identify the final words. 496 words cards would give the clue as under:- P Person/Place/Animal (or related characteristics) O Object (things that can be touched or seen) A Action (things that can be performed; events) D Difficult (challenging words) AP All Play (this can be any type of word) Place the timer and card boxes so that all players have access to them. Divide equally into teams of two to four. Provide each team with pad, pencil, category card and playing piece. Place the playing pieces on the start square on the board. Each team selects a picturist, one who will sketch clues for the first word. Roll the die to determine the order of play. The highest roller starts. There is chance/luck to create words, a board game. It is akin to Scrabble covered under SH 95.04. (26) GO TO THE HEAD OF THE CLASS According to the Revenue:- It is also a board game and the aim of the game is to move the squares in the board with test of the general knowledge through question and answers. No literature. Element of skill chance. According to Assessee:- Puzzle - In this game, players are asked general knowledge questions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 11A of the Central Excise Act, 1944. 10. Regarding the imposition of penalty, we find that the assessee declared all the items in their Declaration under Rule 173B of erstwhile Central Excise Rules, 1944 and it is a case of classification dispute and no penal provision should be invoked. Therefore, no penalty is sustainable on the Assessee and its Manager Shri S.K. Padhi. Accordingly, the penalty imposed on the Assessee and its Manager are set aside. 11. In view of the above discussion, both the appeals filed by the Revenue and Assessee are disposed of in the above terms. The appeal filed by Shri S.K. Padhi is allowed. (Pronounced in open court on _________) Mathew Johnand P.K. Das, JJ. Per Mathew John 12. I have considered the order recorded by my Ld. Brother, the arguments during hearing and also the case records especially the product literature for each item and the rules of each game. Since I am not in agreement with the finding given by Ld. Brother in matter of classification of 4 items as recorded by Ld. Brother out of the 26 items in dispute, I am recording this separate order. Even in the case of other items, I would like to record my fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The rules of the games have been discussed briefly in the order recorded by my brother. It is to be noted that the game Snakes and Ladders is played by children and for amusement because it is a game of just chance. Still this item is classified under heading 95.04 under HSN. So to hold that the argument items involving amusement or those played by children will fall under heading 95.03 is not consistent with HSN notes. The argument that heading 95.04 covers only games played in Casinos or in similar parlours also is not consistent with HSN notes which seeks to classify Snakes and Ladders, Chess, Draughts etc. in heading 95.04. Any way the present proceedings is to decide the classification based on guidelines issued by the Hon Apex Court after hearing both sides in this dispute. 18. At this stage, I would like to first record with the finding that the item Mould and Paint is in the nature of a building substance to make objects looking like fruits and vegetables and hence cannot be classified as Game . This cannot be classified under chapter 84 as claimed by Revenue and I agree with the finding of my Ld. Brother. 19. The appellant has in the case of few items conteste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se also there is no clue involved. However this issue whether clues are given in the game is relevant only for 5 items (out of which Pictionary is one item), where the appellant is claim the items to be puzzles. 21. Going by the above understanding it can be seen that none of the 26 of items including Pictionary passes the test of puzzle laid down by the Apex court in Pleasantime Products Vs. CCE-2009 (243) ELT 641 (SC) (para 13) for considering the item to be a puzzle. This judgement is referred to as the judgement hereinafter. My finding with reference to each of the twenty six items in the matter of criteria for deciding whether an item is a puzzle is tabulated below: S. No Item Whether outcome is predetermined Whether clues are provided Whether chance plays a role Whether Skill/knowledge plays a role 1 City of Games (Paris) No No Yes No 2 City of Games (London) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Yes Yes 18 Disney's tale Spin No No Yes Yes 19 Mould and Paint No No No No 20 Games of Games No No Depends on the game chosen to be palyed Yes 21 Travel Snake and ladders No No Yes No 22 Beeline No No No Yes 23 Dragster No No No Yes 24 Stratego No No No Yes 2 Pictionary No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be classified as toy and tests in para 19 0r 20 of the judgement are to be applied. 24. The Apex Court recorded in the judgement that there may be cases where a Game can have the nature of Educational Toy and explained the scope of theword Toy and Educational Toy in para 19, 20 and 21 as under: 19. In the alternative, it is the case of the assessee that they are also selling what is called as Junior Scrabble which is an educational toy which falls in sub-heading 9503.00 of the CETA under the expression Other Toys . It is submitted that Junior Scrabble has an element of playfulness and recreation. It is submitted that it is not a process but an article a child can play and develop his word power with the scrabble. It is submitted that Junior Scrabble is a pictorial dictionary and in it every child has to put the character and arch after identifying it. We find no merit in this contention. At the outset, it may be stated that according to the pleadings Scrabble is a toy in the nature of a puzzle. This plea indicates that even according to the appellant it is a toy puzzle and consequently it can only fall in the category of puzzles of all kinds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble is not an educational toy. It is a game. It remains a board game and in the context of the placement of the entries in Chapter 95 which we have discussed above, in our view, even Junior Scrabble will come under Chapter Heading 95.04 of the CETA. 25. Thus the Apex Court has laid down the following tests to be satisfied for classification as toy :- (i) Is it a model or miniature or replica of something? (ii) Is it a tool for training a child in physical skills, developing his imagination and stimulating his thinking? (iii) Is it a kit for building structures? (iv) Is it an item like building structure blocks, constructor sets, colour mosaics and educational jigsaws? (v) Is it a communal toy like climbing frames, slash pools and sand trays? 26. After considering the literature of the product Mould and Paint , I have come to the conclusion that it satisfies test at (ii) above. Item Match and Move Memory Game can be considered to be predominantly for the purpose of improving the memory skills and hence satisfying test at (ii). The fact that as per the product literature this game can be played by one child by himself without involving a competitor has als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... makes this strategy so effective. Here is how it works: The students in a history class, for example, are divided into small groups of five or six students each. Suppose their task is to learn about World War II. In one jigsaw group, Sara is responsible for researching Hitler's rise to power in pre-war Germany. Another member of the group, Steven, is assigned to cover concentration camps; Pedro is assigned Britain's role in the war; Melody is to research the contribution of the Soviet Union; Tyrone will handle Japan's entry into the war; Clara will read about the development of the atom bomb. Eventually each student will come back to her or his jigsaw group and will try to present a well-organized report to the group. The situation is specifically structured so that the only access any member has to the other five assignments is by listening closely to the report of the person reciting. Thus, if Tyrone doesn't like Pedro, or if he thinks Sara is a nerd and tunes her out or makes fun of her, he cannot possibly do well on the test that follows. To increase the chances that each report will be accurate, the students doing the research do not immediately take i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under heading 95.03. 30. Now let me state why I am not able to agree with finding of my Ld. Brother in four cases. Let me take these cases one by one. 30.1 Chip N Dale The product literature of this item is reproduced below: CONTENTS: Gameboard, die, 4 pawns, 4 pawn stands, 24 Machine Part cards, 1 Model Machine, 12 Zipper tokens. OUR STORY: Chip 'n Dale's enemy, Professor Nimnul has used his evil genius to build a machine which can control the minds of children everywhere. Luckily, the Rescue Rangers can make a magic machine from everyday household objects to block the rays from the Professor's machine, Can you help them? OBJECT Be the first to build your own Magic Machine. THE FIRST TIME YOU PLAY 1. Carefully punch out the pawns. Machine Part cards, Model machine and Zipper tokens from the cardboard platform. 2. Fold each pawn along the fold line. Fold the small flap inside and fit each pawn into a plastic stand. SET UP 1. Choose a pawn and place it on the STOP! PICK UP 1 PART corner space closest to you on the game board. All players do the same, with one pawn per space. Place any unused pawns out of the game 2. Shuffle the 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... You must always stop on this space, even if you still have moves left on your die roll. Take the Machine Part card from the top of the pile next to that space (even if you don't need it) and place it faceup in front of you. If there are no cards left on that space, do nothing. Your turn is over. See Building Your Machine. * Danger! Zap spaces!. You must count these spaces on your die roll but you may never land on them. To avoid them, see the rules below. * You must always stop on this space. On your next turn, you must roll 1 3 or a 6 to cross the Zap spaces. * If you don't roll a 3 or a 6, you must wait and try again on your next turn. If you have Zipper tokens that are faceup. You may add 1 or more of them to your roll by turning them facedown) to make it a 3 or a 6 * You must roll a 3 or more to cross the Zap spaces. If you do not roll a 3 or more, you must wait and try again on your next turn. If you have Zipper tokens that are faceup, you may add 1 or more of them to your die roll to make it a 3 or more. Building Your machine In order to win the game, you must be the first player to building a Magic Machine. Your machine will be made up of 6 Machine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same. Place any extra playing pieces out of the game. 4. Place the 3 Bad Guy playing pieces on their Hiding Spaces (their matching gameboard circles) NOTE: No player owns the Bad Guys. Different players will move them on certain turns. 5. Carefully punch out the 4 Treasure tokens and 8 Wild Cards. Stack one token for each player on the gameboard Treasure Space. Deal 2 Wild Cards faceup to each player. Place any extra tokens and Wild Cards out of the game. 6. Each player spins the spinner. The player who spins highest goes first. Play continues to the left. GAME PLAY On your turn, spin the spinner and move your playing piece the number of path spaces shown on the spinner. *If the spinner arrow points to 1,5 or 6, your turn is over (after you move your playing piece. *If the spinner arrow points to 2, 3 or 4, move the Bad Guy pictured on that spinner space the same number of path spaces that you moved your playing piece. Your turn is over. Always move your playing piece before moving a Bad Guy. MOVING YOUR PLAYING PIECE Al first, players should move their playing pieces toward the Treasure Space, to collect their tokens (see COLLECTING A TREASURE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... you're doing to move 2. Spin the spinner and move your playing piece as usual. 3. Now move your chosen Bad Guy the same number of spaces. If the spinner arrow points to a different Bad Guy, don't move it-move only the Bad Guy you chose to move. You can never have more than two Wild Cards. A facedown Wild Card can't be used again unless you land on or pass a Wild Card Space! Wild Card Spaces: Whenever you land on or pass a Wild Card Space. Flip one of your facedown Wild Cards faceup. You may use this card again! THE SAFE AREA The five violet spaces near the FINISH Space are Safe Spaces. Bad Guys aren't allowed on Safe Spaces-so once you reach area, you can't be captured! HOW TO WIN to be the first player to reach the FINISH Space (not necessarily by exact count) with a Treasure token, and you win the game! This game is essentially like snake and ladder except that in snake and ladder the player can do nothing to avoid a snake which takesthe away from the final winning position. Here in this game the Bad Guy has the role of a snake. But player has some limited options by which he can avoid a BAD guy. There is no reason why the classific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rules for movement allowed to Fox. So this game is likeDraughts but much less complicated than Chess but essentially of the same nature. This cannot classified on the basis of argument that it is a game where children get amusement when Fox captures Geese. So I am not able to agree with the finding that it is a toy for amusement as distinct from Draughts or Chess. It does not satisfy any of the criteria laid down by the Apex Court for toys. 30.4 Rally The product literature of this item is reproduced below: Contents : 24 Road Cards 4 cars 1 dice Aim of the Game : To be the first to reach the finish with your car. Preparations : 1. Take the Start / Finish' card and the turning point card from the card tack. ('Start Finish' card is the card showing the traffic signal. Turning Point card is the card showing the direction to take a U turn) 2. Shuffle the remaining cards. Make a pile and put the pile face upwards on the table. Put the 'turning point' card at the bottom of the pile. 3. Put the 'Start / Finish' card at the centre of the table and put the cars on top of it. 4. Take turns in throwing the dice. The one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 Travel Chess Draughts 6 Disney Sorry 7 Leverage 8 Junior Monopoly 9 Disney Talespin 10 Travel Snake and Ladders 11 Beeline 12 Dragster 13 Stratego 14 Pictionary 32. While coming to the above view I have gone through the product literature and the Rules of the game and the rule to determine winner for each game and found it to satisfy the criteria laid down by the Hon Apex Court in para 18 of the judgement. The details of such rules of each game are briefly indicated in the order recorded by Ld. Brother. I am not reproducing it because it only will make this order bulkier without throwing any additional information. 33. Further I agree with the finding of the Ld. Brother that the following items are classifiable as toys in heading 95.03. S. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . While the rate of duty for the goods covered by Heading 95.03 was NIL, the rate of duty in respect of playing cards covered by sub-heading 9504.10 of 95.04 was NIL, and for other items of Heading 95.04 i.e. those covered by sub-heading 95.04.90 the rate of duty was 16% advalorem. 37. The point of difference referred to the undersigned for decision of the classification is in respect of four products namely- Chip N Dale, (b) Duck Tale Disney, (c) Fox and Geese and (d) Rally. While learned Member (Judicial) has classified these products as toys under Heading 95.03, learned Member (Technical) has classified these products as games under sub-heading 9504.90 of Heading 95.04. The issue of classification of the above four products along with classification of other products being manufactured by the appellant had been remanded by the Apex Court vide its order dt. 25.1.2010 by which the Apex Court had directed the Tribunal to decide the classification of the various products of the appellant in accordance with its judgment in the case of Pleasantime Products Vs. CCE Mumbai-I reported at 2009 (243) ELT 641 (SC) and both the Member (Judicial) as well as the Member (Technical) in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Heading 95.03. He emphasized that all the products, in question, though board games, have to be treated as plaything for children's amusement without involving any skill or involving very little skill and since the predominant purpose of these products is amusement of the children, in terms of the criteria prescribed in this regard by the Apex Court in its judgment in the case of Pleasantime Products (supra), the same have to be treated as toys falling under Heading 95.03 and not as games covered by sub-heading 9504.90. He also pleaded that though the Apex Court in its order dt. 25.1.2010 has affirmed the classification of 'Snake and Ladders', 'monopoly' and 'scrabble' under 95.04, the classification of 'Snakes and Ladder' under Heading 95.04 is based on a concession by the appellant, as the appellant themselves have conceded classification of Snakes and Ladders under 95.04 and this cannot be treated as the basis for deciding the classification of the products, in question. Shri Datar accordingly supported the order recorded by the learned Member (Judicial) with regard to the classification of 'Chip N Dale', 'Duck Tale Disne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hence, the same cannot be treated as a game predominantly for amusement of the children; and that in terms of the HSN Explanatory Notes also, this product has to be treated as covered by Heading 95.04. He, therefore, pleaded that the order recorded by Hon'ble Member (Technical) in respect of classification of 'Chip N Dale', 'Duck Tale Disney', 'Fox and Geese' and 'Rally' is the correct order. 41. I have considered the submissions from both the sides and have perused the records. The point of difference to be decided is the classification of four products of the Appellant, namely (a) 'Chip N Dale', (b) 'Duck Tales Disney', (c) 'Rally' and (d) 'Fox and Geese' whether under heading 95.03 as toys , as claimed by the Appellant or under sub-heading 9504.90 of the Heading 95.04 as other table or parlour games as claimed by the Department. The product literature of 'Chip N Dale', 'Duck Tale Disney', 'Rally' and 'Fox and Geese' is reproduced in para 30.1, 30.2, 30.4 and 30.3 respectively of the order recorded by Member (Technical). Ongoing through the technical literature of these pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Appellant, under Heading 95.04 and even in terms of HSN Explanatory Notes of HSN Heading 95.04, this heading covers board games like 'Snakes Ladders', 'Ludo', 'Chess' etc., the game 'Fox and Geese' is a board game whose outcome depends upon skill and the same is more like chess and hence the same would also be classifiable under Heading 95.04. 43. The competing entries 95.03 and 95.04 along with entries 95.01, 95.02 and 95.03 of Chapter 95 of the Central Excise Tariff Excise during the period of dispute are reproduced below :- CHAPTER 95 Heading No. Sub-heading No. Description of goods Rate of duty (1) (2) (3) (4) 95.01 9501.00 Wheeled toys designed to be ridden by children (for example, tricycles, scooters, pedal cars); dolls carriages NIL 95.02 9502.00 Dolls representing only human beings NIL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise, Shillong Vs. Wood Craft Products Ltd., reported in 1995(77) ELT-23(SC) (Para18)]; CCE Hyderabad Vs. Bakelite Hylam Ltd. reported in 1997(91) ELT-13 (SC)(Para 16 17); Collector of Custom, Bombay Vs. Business Form Ltd. reported in 2002(142) ELT-18(SC) (Para 2) and LML LTD. Vs. Collector of Customs reported in 2010 (258) ELT-321(SC) (Para 12)]. A larger bench of the Tribunal in para 9.6 of its judgment in case of Mahindra Mahindra Ltd. Vs. CCE, reported in 2005(190) ELT-30 (Tri. LB) while considering the levy of excise duty under Central Excise Tariff heading 73.08 on parts of structures, namely bridges and bridge sections, lock gates, towers, lattice masts roofs, shutters, balustrades etc. in their movable state, notwithstanding their getting permanently fixed in the structures, has observed that the HSN is a universal economic language and code for goods and in an indispensable tool for international trade, that it is governed by international convention on harmonized commodity description and coding system and that the official interpretation of HSN is given by the explanatory notes published by the World Customs Organization. Thus the HSN explanatory notes are a good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and is not a puzzle, as the puzzle has a predetermined outcome. In paras 20 21 of the judgment, the Apex Court has observed that toys are predominantly the tools of amusement for the children and are basically the objects for the children to play with and that while the chance and skill are the two main elements of Scrabble , these elements are absent in the toy. 45. Coming first to the question of classification of the game Fox Geese , as mentioned above, in this game, the moves are decided by the players according to the rules of this game. The player playing for Fox moves during his turn to an adjacent vacant point either forward or backward, sideways or diagonally and the player playing for Geese moves during his turn along a line either forward or sideway to a vacant adjacent point. The Geese cannot move diagonally or backward. The Gees win if they occupy all the nine homes of the fox or make any move impossible for the fox i.e. capture the fox. The fox wins if he captures so many geese so that not enough geese are left to be captured by fox any more. The game, thus, depends on the skill of the players, as each player has to decide his move after giving a thought a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant have not contested the classification of Snakes Ladders under 9504.90 as in term of HSN Explanatory Notes to Heading 95.04 Boards and Pieces (Chessman, draughtsman, etc.) for games of chess , draughts , dominoes , mah- jong , halma , ludo , snakes and ladders etc. are covered by Heading 95.04 and Heading 95.04 of the Central Excise Tariff during the period of dispute was identical to the HSN Heading 95.04. In my view, the products, in question Chip N Dale , Duck Tale Disney and Rally , are, as discussed above, very much like the games of Ludo and Snakes Ladders which are the board games and wherein the move of each player is determined by the outcome of the dice or spinner. When in terms of HSN Explanatory notes, such games are covered by HSN Heading 95.04 and when Heading 95.04 of Central Excise Tariff is identical to HSN Heading 95.04 and there is no different intention indicated in the Tariff, as discussed in para-44 and 44.1 above, the ratio of the Apex Court s judgment in the case of CCE Vs. Wood Craft Products Ltd. (Supra) and CCE Hyderabad Vs. Backlite Hylam Ltd.(Supra) would be applicable and HSN explanatory notes would have to be followed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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