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TMI Blog2009 (11) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... nder sub-heading 9403.00 of the CETA to avoid any enquiry in the matter by the Department – extended period of limitation can be invoked. - 4309-4311 of 2008 - - - Dated:- 12-11-2009 - S.H. KAPADIA and AFTAB ALAM JJ. [Judgment per S. H. Kapadia, J.]. - This batch of civil appeals filed by the assessee involves common issue of classification of branded word game "Scrabble" - whether the product "Scrabble" is classifiable under sub-heading 9503.00 or sub-heading 9504.90 of the First Schedule to the Central Excise and Tariff Act, 1985 ("CETA", for short). 2. Assessee is a proprietary firm engaged inter alia in the business of manufacture and trade of toys, games and puzzles of various kinds falling under Chapter 95 of the First Schedule to the CETA. The goods are manufactured by the assessee either under their own brand name of "United Toys" or under different brand names. One of the items manufactured by the assessee is "Scrabble" which is a registered brand name owned by M/s. J.W. Spears Sons Ltd., U.K. According to the assessee, "Scrabble" is a puzzle or in the alternative it is an educational toy falling under sub-heading 9503.00 of the CETA. Assessee holds a lice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (by second SCN) on the clearances of "Scrabble" made by the assessee during the period March 1996 to June 2001 charging excise duty for a longer period of limitation. In reply to SCN, assessee submitted that the longer period of limitation could not be invoked under Section 11A(1) of the 1944 Act as the assessee had stated in their declarations that they were manufacturing toys and puzzles classifiable under sub-heading 9503.00 as well as under sub-heading 9504.90 and they had specifically stated in the declarations that they were manufacturing toys and puzzles which also bear the brand name of M/s. J.W. Spears Sons Ltd., U.K., and since "Scrabble" was a product of M/s. J.W. Spears Sons Ltd., U.K., it could not be said that they had deliberately suppressed the fact that they manufactured "Scrabble". On merits, the assessee replied to the SCN that even if "Scrabble" would be treated as a table game still it would be covered by the genus "puzzles of all kinds" in sub-heading 9503.00. On the basis of definitions under various dictionaries, internet search on the subject etc., the assessee submitted that in any event "Scrabble" was an educational toy. Assessee also relied upon vari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Playing cards 16% 9504.90 Other (emphasis supplied by us) 8. The said chapter refers to "Toys, Games and Sports Requisites; Parts and Accessories thereof". Heading Nos.95.01, 95.02 and 95.03 deal with a subject-matter, namely, "Toys" whereas Chapter Heading 95.04 deals with "Articles for funfair, table or parlour games, including pintables, billiards, special tables for casino games and automatic bowling alley equipment". Broadly, therefore, we have two subject-matters, namely, Toys on one hand and Articles meant for funfair, table or parlour games on the other hand. This conclusion is arrived at by applying a rule of interpretation called as "companion test". Within the subject-matter "toys", we find that Heading 9501 covers `wheeled 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 solution by finding the correct answer or by putting it together properly, and winning or losing can only come by way of time taken in solving the puzzle. 12. The other important difference is that in a "Scrabble" there are no clues whereas in crossword puzzle, as stated above, words are written according to clues. 13. One more distinguishing feature to be kept in mind is, in "Scrabble" there is an element of chance and skill. The player in "Scrabble" gets lettered tiles to create words by chance. According to The Concise Oxford English Dictionary, Tenth Edition, Revised, "Scrabble" is defined as a board game in which players use lettered tiles to create words in crossword fashion. These tiles are initially kept in a pouch from which every player picks up the tiles. This is pure matter of chance. Further, apart from the element of chance there is also an element of skill invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ense but as understood in common parlance. Courts must give the words, used by the legislature, their popular- sense meaning "that sense which people conversant with the subject-matter with which the statute is dealing, would attribute to it". The word in the entry must, therefore, be interpreted according to ordinary parlance and must be given a meaning which people conversant with the commodity would ascribe to it. Applying the said test of "common parlance" or trade meaning and commercial nomenclatures, we are of the view that "Scrabble" is a board game. If one attends any departmental store in Mumbai like Oxford or Crossword, "Scrabble" is put in the board game section and not in the section for puzzles. Therefore, even by the test of common parlance "Scrabble" is not the puzzle. It is a game. 18. The word "game" in commercial sense means an article or apparatus used in playing games. According to Words and Phrases, Permanent Edition, the word "game" also defines, in certain context, instrumentalities used in playing them. According to Stroud's Judicial Dictionary, a "game" is a form of a play or sport especially a competitive one, played according to rules and decided by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... century the word came to denote a child's play-thing. According to Encyclopedia Americana toys are tools of the human child, training him in physical skills, developing his imagination and stimulating his thinking. Predominantly, it is a play-thing. Toys imitate in miniature the world familiar to children. According 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 diction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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