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TMI Blog2005 (2) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... help of machines and which were being cleared without payment of duty. 3.On 4th November, 1997, a show cause notice was issued to the assessee alleging mis-declaration in the classification list by prefixing and suffixing each of the above items with the words "baby" and "toys" respectively. Consequently, "Activity Desks and Chairs" were described as "Baby Chair Toy" and "Baby Desk Toy"; Rockers were described as "Baby Rocker Toy"; Slides were described as "Baby Slide Toy". According to the department, the said prefix and suffix was inserted to each of the above articles to mislead the department into believing that each article was a toy. Hence, the department sought to recover duty for the period from 1-4-1992 to 28-2-1997 by invoking the proviso to Section 11A(1) of the Central Excise Act, 1944 (hereinafter referred to for the sake of brevity as "the 1944 Act"). According to the department, the said items were classifiable under Chapter Headings 95.06, 94.01, 94.03 and 39.22 and, therefore, chargeable to duty. 4.The basic question which arises for determination in these Civil Appeals is - whether the aforestated seven articles are "toys" classifiable under Tariff Heading 95.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hildren. He submitted that the said Desk has a slate with a removable desk top with twin wells for crayons, toys, books etc. The children can even draw or learn the basics of writing on this table. Similarly, the play table is designed for group play. These articles were aids for the play of small children. They were bought and sold in the market as toys. They were exclusively available in toy shops and not in furniture shops. It was submitted that the usage and commercial parlance show that the articles were toys classifiable under Tariff Heading 95.03 as toys. In this connection, reliance was placed on the Certificates obtained from Toys Association of India and from Sports Goods Export Promotion Council, letters from various distributors and catalogues of various international manufacturers and rotational moulding association. It was submitted that the department has not adduced any evidence to show that in commercial parlance, these articles are not known as toys. Reference was also made to Note 1 under Chapter 94 to show that the said chapter did not cover the toy furniture. According to the assessee, toy furniture has not to be understood as furniture under Chapter 94 but sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udes models of aircraft, trains etc. which are reproductions of Articles. It is important to note that Section XX of the Central Excise Tariff Act, 1985 (hereinafter referred to for the sake of brevity as "the 1985 Act") covers Chapters Nos. 94, 95 and 96 under the caption "Miscellaneous Manufactured Articles". Chapter 94 deals with Furniture. Chapter Note 1(k) excludes toy furniture or toy lamps from Chapter 94. Chapter Note 2 refers to the articles of furniture, falling in Chapter 94, subject to the condition that they are for placing on the floor or ground. Tariff Heading 94.01 refers to Seats. Further, the HSN Heading 94.03, which is similar to Tariff Heading 94.03, refers to any movable article which can be placed on the floor and mainly used in dwelling house, schools, cafes etc. as furniture. It covers desks, chairs etc. Basically, toys, as indicated by HSN Heading, are miniature reproduction of the articles used by the adults, like, furniture, musical instruments etc. 16.In the light of what is stated above, we are of the view that play tables, activity desk etc., enumerated above, are more akin to furniture under Headings 94.01 and 94.03 than toys under Heading 95.03. 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Rockers"(B) : 24.The next question which arises for determination is - whether the above items are "toys" under Tariff Heading 95.03, as contended by the assessee; or whether they are equipments for general physical exercise, gymnastics and athletics, as submitted on behalf of the department. 25.To decide the above controversy, we quote hereinbelow Tariff Headings 95.03 and 95.06 : Heading No. Description of Goods Rate of Duty 95.03 Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds 15% 95.06 Articles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or out-door games, not specified or included elsewhere in this Chapter. 15% 26.As stated above, Tariff Heading and HSN Heading 95.03 describe "toys" as reduced-size models. Toys are miniature replica of articles used by adults. Tariff Heading 95.06 is similar to HSN Heading 95.06. According to explanatory notes to HSN Heading 95.06, equipments for exercise etc. are parallel bars, rings, trapeze etc. The said note excludes toys under Heading 95.03. However, it covers swings, slides etc. used in the playgroun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "Play Pool" as "Baths" under Heading 39.22. 35.We would have remanded the matter to the Tribunal, if there was any ambiguity about the classification of "Play Pool" under Tariff Heading 39.22. However, we are not inclined to remit the matter as the item stands fully covered by the explanatory notes to HSN Heading 39.22. Moreover, at the stage of show-cause, full opportunity was given to the assessee to disprove that it was not falling under Heading 39.22. On the facts and circumstances of this case and without going into the question as to what course the department should follow when the Tribunal classifies the item in a different category, we hold that the Adjudicating Authority was right in classifying "Play Pool" under Tariff Heading 39.22. 36.On the question of limitation, it may be stated that one of the show-cause notices is dated 4-11-1997 claiming duty from the assessee for the period commencing from 1992-93 to 28-2-1997. By the impugned judgment, the Tribunal came to the conclusion that the assessee had filed its classification list giving exact description of the goods; that all the relevant features of the products manufactured were available with the department; that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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