Custom, Excise & Service Tax Tribunal
M/S. Funskool (India) Ltd vs Commissioner Of Central Excise, ... on 23 May, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
For approval and signature:
Honble Shri P.K. Das, Judicial Member
Honble Shri Mathew John, Technical Member
1. Whether Press Reporters may be allowed to see the Order for Publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether the Members wish to see the fair copy of the Order?
4. Whether order is to be circulated to the Departmental authorities?
Appeal No. E/620/2002 & E/302/2003
(Arising out of Order-in-Original No. 14/Commr. Goa/CX/2002 dated 27.9.2002 passed by the Commissioner of Customs, Mumbai)
1. M/s. Funskool (India) Ltd.
2. S.K. Padhi Appellants
Vs.
Commissioner of Central Excise, Panaji, Goa Respondent
Appeal No. E/722/2003 (Arising out of Order-in-Appeal No. KKS (19) 19/GOA/2002 dated 17.7.2002 passed by the passed by the Commissioner of Customs and Central Excise (Appeals), Panaji, Goa) Commissioner of Central Excise, Panaji, Goa Appellant Vs. M/s. Funskool (India) Ltd. Respondent Appearance for the Assessee Shri Arvind P. Datar, Senior Advocate Shri Thirumal Rao, Advocate, Appearance for the Department Shri K.S.V.V. Prasad, JC (AR) and Shri M. Rammohan Rao, DC (AR) CORAM Honble Shri P.K. Das, Judicial Member Honble Shri Mathew John, Technical Member Date of Hearing : 19/23.09.2013 Date of Pronouncement: 10.2.2014 Interim Order No. 32 to 34/2014 dt. 10.2.2014 FINAL ORDER No.40324-40326/2014 dt. 23.5.2014 Per P.K. Das These appeals are taken up for hearing as per the judgment/order dated 25.1.2010 of the Honble Supreme Court of India in I.A. Nos. 8 to 10/2009 in Civil Appeal Nos. 3460 to 3462/2004 [Commissioner of Central Excise, Goa & Anr. Vs. M/s. Funskool (India) Ltd. & Anr.] whereby the Honble Court directed the Tribunal to examine the case as to whether each of the 31 items manufactured by the Assessee would stand covered by CSH 9504.90 as games as contended by the Revenue or by CSH 9503.00 as toy/puzzle as claimed by the Assesses. The Honble Court directed that if the decision of the Tribunal on merit stands against the Assessee, the demand of duty would be restricted for normal period of limitation. For that purpose, the Tribunal was directed to apply the tests which have been enunciated by the Honble Supreme Court in the judgment in the case of M/s. Pleasantime Products Vs. Commissioner of Central Excise, MumbaiI reported in 2009 (243) ELT 641 (SC).
2. The relevant facts of the case, in brief, as revealed from the records are that since 1986 the Assessees are engaged in the manufacture of Toys and Games falling under Chapter 95 of the CETA, 1985. They were filing the classification list upto 1995 and thereafter classification Declaration under 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 31.12.2000. It has been alleged that the item at Serial No. 1 to 21 appears to be classifiable under S.H. No. 9504.90, as the items are similar in the nature to the Board games of Ludo / Snakes & Ladder / Chess / Draughts. The item Serial No. 22 is mould / plastic mould used for making different figures of fruit, vegetables etc. Explanatory Notes to Chapter 84 of HSN mentioned that moulds for mineral (Plaster of Paris) classifiable under SH 8480.10. The name of the items are as under:-
1. Beeline
2. Disney Telespin
3. Disney Sorry
4. Disney Chip N Dale
5. Game of Games
6. Duck Tales
7. Monopoly Junior
8. Pay Day
9. Hotel
10. City Games (Paris)
11. City Games (London)
12. Games of States (USA)
13. Games of States (India)
14. Travel Ludo
15. Travel Snakes & Ladders
16. Travel Chinese Checkers
17. Dragster
18. Stratego
19. Fox & Geese
20. Travel Chess & Draughts
21. Leverage
22. Mould and Paint 2.2 By Order-in-Original dated 28.9.2001, the Assistant Commissioner of Central Excise, Panaji, Goa Division, confirmed the demand of duty of Rs.9,04,444.37 along with interest and imposed a penalty of Rs.90,000/- under Rule 173Q r/w Rule 9(2) for contravening Rule 9(1), 173F, 173G and penalty of Rs.1,000/- for contravention of Rule 210 of the erstwhile Central Excise Rules, 1944. He has also confirmed the classification of 1 to 21 items under sub-heading 9504.90 and other item Serial No. 22 under sub-heading 8480.10 of CETA, 1985 as proposed in the Show Cause Notice. The assessee filed appeal before the Commissioner (Appeals) against the said adjudication order. 2.3 Thereafter, another show-cause notice dated 5.11.2001 was issued by the Additional Director General, Director General of Central Excise Intelligence (DGCEI), Zonal Unit, Mumbai proposing demand of duty of Rs.60,77,451.35 along with interest and penalty for the period November 1996 to June 2001. The demand of duty was proposed in respect of 12 items classifying under sub-heading 9504.90 chargeable to 16% ad valorem instead of sub-heading 9503.00 chargeable to nil rate of duty as claimed by the Assessee in their Declaration. It has also proposed to impose penalty on Shri S.K. Padhi, Manager (Factory Accounts) and authorized signatory of the Assessee. It has been alleged that all the items are Board and Dice Games. As per HSN, Board & Dice 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 passed by the Commissioner (Appeals).
2.6 The Commissioner of Central Excise, Goa by Order-in-Original dated 27.9.2002 confirmed the demand of duty of Rs.60,77,451/- as proposed in the show-cause notice dated 23.11.2001. He has also imposed penalty of equal amount under Section 11AC of the Central Excise Act, 1944 along with interest. He has further imposed penalty of Rs.15,000/- on Shri A.K. Padhi, Manager (Factory Accounts) of the Assessee under Rule 26 of the Central Excise (No. 2) Rules, 2001. The Assessee and Shri S.K. Padhi filed two appeals No. E/620/2002 and E/302/2003 before this Tribunal against the adjudication order passed by the Commissioner of Central Excise, Goa insofar as demand of duty against 10 items out of 12 item except Snakes & Ladders and Monopoly.
2.7 The Tribunal by Final Order No. 103 to 105/2004 dated 23.1.2004 allowed the appeals filed by the Assessee and Shri S.K. Padhi in respect of 10 items and rejected the Revenues appeal in respect of 22 items.
2.8 Revenue filed three appeals (C.A. Nos. 3460 to 3462/2004) before the Honble Supreme Court against the order of the Tribunal. On 12.11.2009, the Honble Supreme Court heard these appeals filed by Revenue along with appeals on similar issue filed by the other assessee in Civil Appeal Nos. 4309 to 4311/2008 (M/s. Pleasantime Products Ltd. Vs. CCE, Mumbai). In the case of Pleasantime Products Ltd, the Honble Supreme Court passed a detailed judgment and dismissed the appeals filed by the assessee as reported in Pleasantime Products Ltd. Vs. CCE, Mumbai 2009 (243) ELT 641 (SC). In the case of Pleasantime Products (supra), the dispute relates to classification of branded word game scrabble under sub-heading 9503.00, puzzle as claimed by the assessee or sub-heading 9504.90 game as held by the Revenue. The Honble Court held that Scrabble and Junior Scrabble would come under 9504.90.
2.9 Thereafter, the Honble Supreme Court passed judgment dated 12.11.2009 in these appeals and allowed the appeals filed by the Revenue, which reads:-
1. The batch of civil appeals is filed by the Department against the decision of CESTAT dated 23.1.2004 in Final Order Nos. 103 to 105 of 2004. These are virtually cross appeals to civil appeals filed by the assessee bearing Civil Appeal Nos. 4309-4311 of 2008 M/s. Pleasantime Products & Anr. V. Commissioner of Central Excise, 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. We once again declare that Scrabble/Upwords is a game falling under Heading95.04 of CETA.
5. Accordingly, civil appeals filed by the Department are allowed with no order as to costs. 2.10 Revenue filed application before the Honble Supreme Court for incorporating the correct number of items in the above Judgment. By Judgment/Order dated 25.1.2010, the Honble Court was pleased to pass the following order:-
The appeal filed by the Department in the case of M/s. FIL dealt with 34 items (and not with 12 items as mentioned in our order dated 12.11.2009, which is now recalled). We may state that three out of 34 items dealt with Scrabble/Upwords, Monopoly, Snake & Ladder. Applying our judgment in Pleasantime Products, we hold that the said three items, namely, Snake & Ladder, Monopoly and Scrabble/Upwords stand classifiable under CH 95.04 of the CETA, 1985.
6. Subject to the question of limitation, we have discussed hereinafter, we remit the case to the Tribunal with the request to examine as to whether each of the remaining 31 items would stand covered by CSH 9504.90 or by CSH 9503.00. For that purpose, the Tribunal needs to apply the tests which we have enunciated in our judgment in Pleasantime Products.
7. Now, coming to the question of limitation, we are of the view that, on facts and circumstances of this case, in respect of the first show-cause notice dated 23.11.2001, the claim of the Department has got to be confined to the period after October 2000 and that too, if at all the decision on merits in the matter of classification goes against the assessee. As regards the second show-cause notice dated 1.5.2001, the said notice is within limitation and therefore, the Department would be at liberty to proceed in accordance with law.
8. Before concluding, we may clarify that we have recalled our order dated 12.11.2009 only to bring about clarity in our order. We could have corrected our order easily by incorporating the correct number of items. However, we thought it best to recall the order and to redictate the said order for the sake of clarity.
9. Accordingly, the civil appeals filed by the Department are allowed with no order as to costs.
3. The learned Authorized Representative on behalf of the Revenue submits that the Revenue filed appeals before the Honble Supreme Court in respect of 34 items. Out of that, the Honble Supreme Court had already decided three items in favour of the Revenue insofar as it stand classified under Chapter 95.04. The Honble Supreme Court directed the Tribunal to decide the present appeals by applying the tests as enunciated by the Honble Court in the case of Pleasantime Products (supra). Thus, the Tribunal has to decide the matter as per the specific direction of the Honble Supreme Court.
3.1 It is submitted that in Pleasantime Products (supra), the Honble 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 Honble 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, outcome is not predetermined and clues are not given. In support of his contention, he placed a chart showing the description and function of all the items.
4. On the other hand, the submissions of the learned senior Advocate on behalf of the Assessee are as under:-
(i) The decision of the Honble Supreme Court insofar as classification of Snakes & Ladders and Monopoly under Sub-Heading No. 9504.90, the Assessee had accepted the said classifications at show-cause notice stage and no appeal was filed before the Tribunal.
(ii) The Honble Court decided the case of Pleasantime Products (supra) in respect of classification of Scrabble and Junior Scrabble and held that the said items had elements of chance and skill to be treated as games and not puzzle/toys. In the present case, the Honble Supreme Court had not examined the items in question and directed the Tribunal to examine the whole issues in the light of observation made in the case of Pleasantime Products (supra) in accordance with law. Thus, the Tribunal has to consider all the issues including the observation of the Honble Supreme Court in the case of Pleasantime Products (supra).
(iii) In the case of Pleasantime Products (supra), the Assessee claimed Scrabble and Junior Scrabble as puzzle and education toy respectively. The Honble Supreme Court at para 19 observed that from the pleadings of the assessee, the difference between the game and puzzle had to be ascertained in three factors.
(a) In a puzzle, outcome is predetermined
(b) Clues are given in the puzzle
(c) In a puzzle there is no chance only skill In Scrabble, there is no clue and the outcome is not predetermined. In a Junior Scrabble, there is an element of chance and skill and therefore both the items are not puzzles.
(iv) In Pleasantime Products (supra), the observation of the Honble Supreme Court at paras 21, 22 and 23, are relevant in deciding as to whether the items in this case are toy:-
(a) Whether the item/product is an object for a child to play with? (paras 21 & 23)
(b) Whether the item/product is to train the child in physical skills, to develop his imagination and stimulate his thinking? (para 21)
(c) Whether the item/product imitates in miniature, the world familiar to children? (para 21)
(d) Whether the item/product is an education toy, i.e. in the nature 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 Honble 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 childs thinking. Relied upon the decision of the Honble 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 and Ladders requires rolling of dice and for that reason alone all the products involving dice cannot be considered as game, subject to above test.
(vi) The finding of the Tribunal in its earlier order covered the tests laid down in the case of Pleasantime Products (supra), as under:-
(a) All the products are toys except snake and ladder and monopoly which are also given up by the Assessee.
(b) All the toys are meant for children.
(c) The games are replicas or miniature models covered under Heading 9503.
(d) Heading 9504 covers competition games and games for gambling purposes such as dog-eat-dog; cut-throat and aggressive which are used by the children for recreation, joy, entertainment and education and would not fall under Heading 9504.
(e) The games in question are small items and not those required to be played in parlous or as articles of funfair or in clubs.
(f) Table games implies that the game must be grafted on the table, such as table tennis, roulette, snooker, billiards etc. Therefore, the games under consideration are not table games.
(g) Parlour games means that the games must be played in a club or a parlour, and a measure of competitiveness must exist. In the present case, the games are played by the children for recreation which cannot be treated as parlour games and would be properly classifiable under 9503 as other toys.
(vii) The Department erroneously proceeded on the basis that the assessee had accepted Snake and Ladder as well as Monopoly are not toys and therefore other items would be accepted as games. It is well settled that a concession does not give rise to any precedent. Relied upon the judgment of Lakshmi Shanker Srivastava Vs. State (Delhi Administration) AIR 1979 SC 451.
(viii) All the items in question classified under ITC Heading 9503 30 10 which covers educational games and functional/ technical toys/models /kits under free import category. It is contended that ITC Import Policy has followed the HSN Explanatory Notes.
(ix) The learned Senior Advocate submitted a Written Submission with a Chart showing details of nature of each items. He has also demonstrated all the items before the Bench during the course of hearing. The Assessee submitted copy of item/product literature and instruction of the items.
5. After hearing both sides and on perusal of the records, we find 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 Honble 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 Honble 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 Honble 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 9503.00 and the Tribunal would apply the tests as enunciated in the case of Pleasantime Products (supra).
6. Before dealing with the details of each items, we may look into the relevant portion of Chapter 95 of CETA, 1985 and its scope as observed by the Honble Supreme Court in Pleasantime Products (supra) as under:-
CHAPTER 95 TOYS, GAMES AND SPORTS REQUISITES;
PARTS AND ACCESSORIES THEREOF 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 95.03 9503.00 Other toys; reduced-size (scale) models and similar recreational models, working or not; puzzles of all kinds NIL 95.04 Articles for funfair, table or parlour games, including pintables, billiards, special tables for casino games and automatic bowling alley equipment 9504.10 Playing cards NIL 9504.90 Other 16% ?????????????????????(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 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 material).
(2) Video games (used with a television receiver or having self-contained screen) and other games of skill or chance with an electronic display.
(3) Tables of the furniture type specially constructed for games (e.g. tables with a draught -board top).
(4) Special tables for casino or parlour games (e.g. for roulette or for miniature horse races); croupiers rakes, etc. (5) Table football or similar games (6) Coin-or-disc-operated machines of the kinds used in amusement arcades, cafes, funfairs, etc. for games of skill or chance (e.g. machines for revolver practice, pintables of various types).
(7) Automatic bowling alley equipment, whether or not equipped with motors and electro-mechanical features.
For the purpose of this heading the expression automatic bowling alley equipment applies not only to equipment where the pins are arranged in triangular form but also to other types (e.g. those I n which the pins are arranged in a square).
(8) Shittles and indoor croquet requisites.
(9) Sets comprising slot-racing motor cars with their track layouts, having the character of competitive games (10) Dartboards and darts (11) Card games of all kinds (bridge, tarot, lexicon etc.) (12) Boards and pieces (chessmen, draughtsmen, etc.) for games of chess, draughts, dominoes, mah-jong, halma, ludo, snakes and ladders etc. (13) Certain other accessories common to a number of games of this heading, for example, dice, dice boxes, counters, suit indicators, specially designed playing cloths (e.g. for roulette).
7. The learned Senior Advocate on behalf of the Assessee submitted a chart of details of each item and claimed 7 items as Educational Toy, 11 items as Toy, 2 items as Toy reduced size model and 5 items as Puzzle. The item Travel Chess & Draughts is not mentioned in the said chart. Now, we have to examine the classification of each items as claimed by the Assessee with product/item literature and instruction of play as per order of the Honble Supreme Court as under:-
(A) EDUCATIONAL TOY:-
Explanatory Notes to Heading 95.03 of HSN includes Educational toy. Sub-Heading No. 9503.00 of CETA, 1985 refers as Other toys recreational models. The Honble Supreme Court in Pleasantime Products (supra) observed that predominant test would apply to educational toy as under:-
20.? ***** ***** ****** ***** ***** 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 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 amusement. Some toys and games would teach them basic money skills, help to understand of spending, saving and investment of money. The children would grow up with an early financial start.
(1) CITY GAMES (PARIS) (2) CITY GAMES (LONDON) (3) GAMES OF THE STATES (USA) (4) GAMES OF THE STATES (INDIA) All these items are similar in nature and therefore all are taken up together.
According to Revenue:-
The nature of these games, Board Games like Ludo, where counters are moved as per the outcomes of the thrown dice. It is played as per the instructions on the card informing about Paris, London, USA or India as applicable to each game. The player who gets the highest total number through won cards is the winner. Thus it is an educative and recreational Board Games. Appear classifiable under CSH 9504.90 CETA, 1985. It has elements of Chance / Luck, No fixed outcome, No clues. Thus it merits to be considered as a game. According to Assessee:-
Educational Toy - These games take the players through a tour of the important locations of Paris, London, USA and India. On reaching these places, the players are given cards and points, which are then added up to determine the winner. The object is to educate the player on the monuments of Paris, London, States of USA and States of India.
Finding:-
(a) The labels of game box of City Games (Paris) and City Games (London) would show that it is an exciting way to know Paris and tour of London with lots of fun and learning. The first player throws the dice and moves his pawn as per the number thrown. If the player lands on a numbered location, he picks up a playing card from a pile, having the corresponding number. The text given on the pink side of the card gives a brief information about the location, which has to be read aloud. Thus, there is a clue given in the cards. The outcome is predetermined insofar as the cards won by the player have to be kept in front of the player so that others can see that these cards cannot be owned by them any longer. The players would proceed on the basis of instruction of card. There is no skill, but chance. The purpose is to educate the children about Paris and London.
(b) The product literature of Games of the States (USA) indicates that this highly entertaining and educational game teaches the location of each of the States and its capital city. You learn about each states 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 players 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 USA.
(c) The product literature of Games of the States (India) shows an exciting discovery of India learn more about our country as you buy and sell from state to state.
The object of the game is buy a product in one state and haul it by truck to another state where you try to sell it at a profit. The player with the most money at the end of the game is the winner. Meanwhile you brush up your geography and general knowledge. Each player takes a truck and three product discs of the same colour. Shuffle the State and Union Territory cards and place them face down on the space marked State Carus. Shuffle the chance card and place your product discs one each in the three states. Spin the transport dial and move the truck the number of spaces shown in the dial. Thus, clue is given in the transport dial. There is a chance but no skill. The outcome is predetermined. It would help the children to know the different States of our country. All these items should be considered as educational toy.
(5) MATCH & MOVE MEMORY According to Revenue:- It is also a board game and the aim of the game is to match the pictures space in the game board with the picture cards. Elements of skill and chance.
According to Assessee:-
Educational Toy - Here, the players have to remember cards that were drawn earlier so that they can match the card they have picked up with those cards. The outcome is not predetermined. There are clues given. There is no chance, only skill. Finding:-
The label of game box indicates Step ahead when you remember whats hiding where? It is seen from the product literature that in Match & Move Memory, fun object cards are hiding. They match picture spaces on the game board. To move ahead on the game path, your child must find the card that matches the next picture space. Each match is rewarded with a free turn. Match & Move memory is an advanced memory game that helps to develop visual recall skills. Your child can play it alone, with you; or with other children. Any way its played, its unforgettable fun! In Match & Move Memory, clue is given in the picture space. There is no chance. Skill is required. The purpose is to train memory of the children and it would be considered as educational toy.
(6) PAY DAY According to Revenue:-
The game is similar to the Board games like Ludo as mentioned in HSN 9504.90. The movement 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. Roll the dice and move your token that many times allow the calendar if you have recoded pay day of the last month of play (according to the agreed upon number of months). You retire from game and wait for all the other players to finish. When all players have completed the agreed upon number of pond, the player of the highest network, the most cash when all the players have landed that pay day of last time wins the game. We do not find any material to treat the item as educational toy. It has an element of chance / luck, no fixed outcome, no clues. It should be considered as game.
(7) HOTEL According to Revenue:-
This is Board game wherein playing pieces moves as per the (car) moves as per the outcome of the thrown dice. Whereas the car lands, the player follows instruction of the game. Appears classifiable under CSH 9504.90. This facilities a classic Card Board game involving economic transaction, building Hotel chain etc. Game is to develop chain of hotels & drive out Competitors. It has elements of competition, No fixed outcome, Chance / Luck and No clues. Thus it merits to be considered as a game. According to Assessee:- Educational Toy Each player chooses a car and places it on the start space. Highest roller of the dice goes first. On your turn, roll the dice and move your card forward to the spaces shown on the dice. The object of the game is to buy the land, build hotels, build main buildings and its extension, hotel entrances, recreational facilities etc. one earns money when opponent player comes into your area. Property title deeds are purchased from the bank based on the price fixed on the title deeds. The play is governed by certain specified rules like obtaining permission to build the main building. Even player collects money from the bank while passing through the bank. Winner is the player who lastly remains in the game while others going broke. The outcome is predetermined and no clue. There is no skill, only chance. Finding:-
The game instruction indicates that the game is to develop chain of hotels and drive all competitors. The object of the game is to become a rich hotel tycoon: build hotels, welcome guest and hope the stay so long that they go broke paying their bills. On your turn, roll the dice and move your card forward (clockwise direction around the board) the number of lead steps shown on the dice. Cars 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 Honble 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. There is no competition, chance or luck. But, a set of cricket bat and ball available from the game shop is played as game. We find that the Honble Supreme Court in Pleasantime Products (supra) discussed the word game and toy as under:-
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 Strouds Judicial Dictionary, a game is a form of a play or sport especially a competitive one, played according to rules and decided by skill and chance. According to Words and Phrases, Permanent Edition, the instruments by which chance may be developed and upon which skill may be exercised are also games - such as cards, dice, balls, figures, letters, checks etc. Therefore in a game there is a trial of skill or chance between two or more contesting parties according to some rule(s) by which one may succeed or fail. It is a contest for success, for a trial of chance or skill and it embraces every contrivance which has for its object sport, recreation or amusement. These are the various dictionary meanings of the word game. Applying the dictionary meaning, we are of the view that Scrabble is a board game. It is not a puzzle. In the circumstances, it falls under Heading 95.04 and not under sub-heading 9503.00 of the CETA.
***** ***** ****** ***** *****
20. According to The Concise Oxford English Dictionary, Tenth Edition, a toy is an object for a child to play with, typically a model or miniature, replica of something. The gadget or a machine providing amusement is a toy. In 1914 even a car was a toy for a rich man. According to Strouds Judicial Dictionary, Fifth Edition, construction kits for making model are toys and games. According to Encyclopedia Americana originally a toy was made for adults rather than children, however, by 19th century the word came to denote a childs 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. The key test of the game is chance or luck and also skill. Outcome is not predetermined and there is also competitiveness. 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 9504.90. All the items are classificable Under CSH 9504.90 of CETA, 1985. To be considered as a GAME, in view of Honble Supreme Courts decision. According to Assessee:- All the items are toy.
(a) Travel Ludo - The objective is to get four coloured pieces to the centre of the board by moving according to the dice. The outcome is predetermined. Clues are not given. There is no skill, only chance.
(b) Travel Chinese Checker The objective is to get all ones pieces to the opposite end by either moving one space, or jumping over another piece. The outcome is predetermined. Clues are not given. There is no skill, only chance
(c) Travel Chess & Draughts are not mentioned in the chart submitted by the learned Senior Advocate.
Finding:-
The instruction of play Travel Ludo would show that having thrown a six, the first player may move a peg out of his corner and on the coloured arrow square. As a players peg moves around the board towards his own corner, it is moved along the central coloured track towards triangle marked home. He must, however, throw the exact number of spaces required to get his peg home. Similarly, the instructions of Travel Chinese and Checkers would show that for each player, place one set of six coloured pegs on one of the points of the star showing the colour. The first player to move all his pegs to the other side of the star is the winner. The instruction of the Travel Chess would show that each player takes it in turn to move his pieces, playing on all the squares. There are various pieces namely, King, Queen, Bishop, Knight, Castle and Pawns and the aim is to capture (check) the opponents king. Similarly, the instruction of Travel Draughts would show that the aim is to take all the opponents pieces or to trap him so that he cannot move. On close reading of the instruction of play of the above items, it is seen that cool and calm mental states are required to play and it is highly competitiveness rather than fun and amusement. Further, rules are not plain and simple and require strong alertness, ability and accumen. The learned Senior Advocate submitted that these toys imitate a miniature to the children. We find that all these items are much smaller size than normal size of game. It is reduced size to play during travelling. All the elements of normal board game are available in these items and therefore, it would be 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 predetermined. There are clues and no skill, only chance. In Duck Tales Disney, the objective of the game is to reach the finish as soon as possible, by using dice. The only choice players have to make is in which direction to move their piece. The outcome is predetermined. There are no clues given. Since the game is only based on dice, there is no skill, only chance. In Disney Sorry, players must go around the board and collect as many sorry cards as possible. The players move according to dice. The outcome is predetermined. There are no clues given. Since the game is only based on dice, there is no skill only chance.
Finding:-
(i) The background history of Scrabble as narrated in Pleansatime Products (supra) would show that it was intended as game, as mentioned below:-
When the Great Depression left architect Alfred Mosher Butts out-of-work, he decided to invent a board game. He did his market research and produced a document entitled Study of Games. He concluded that there are three kinds of parlour games: number games, such as dice and bingo; move games, such as chess and checkers; and word games, such as anagrams. He stated that it is curious that while two of the three kinds of table games has yielded such interesting developments, the third has produced nothing better than anagrams. Thus Butts wanted to create a game that combined the vocabulary skills of crossword puzzles and anagrams, with the additional element of chance. The game was originally named Lexico, but Butts eventually decided to call the game Criss-Cross Words. Scrabble which means to grope frantically, was trademarked in 1948.
(ii) The game instruction of Chips N Dale, would show that the story is Chip-n-Dales enemy, professor Nimul has used his evil genius to build a machine which can control the minds of the children every time. Luckily Rescue Rangers can make a Magic Machine from everyday house hold objects to block the rays from the professors machine. Can you help them? It was invented to control the mind of the children, to build a magic machine which is different from the background history of scrabble intended as game. The rules of play are that choose a pawn and place it on the STOP! PICK UP 1 PART corner space closest to you on the game board. Each player rolls the dice. Always move from clock wise around the game board. The first player to complete 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 another players playing piece, move your playing piece to the next open space.
* If you land on or pass a Bad Guy, you get captured.
The outcome is predetermined insofar as you have to reach the FINISH SPACE to treasure island. There is no clue. It requires skill and chance.
(iv) Rules of Disney Sorry are that the first player draws the top card from the draw pile and reads the instructions. He is looking for one or two cards to start a playing piece out on the track, if he fails to turn up, either of these card his turn is over. If this card is drawn, follow the instruction and draw another card. It appears that clue is given when the player draws the cards and reads the instruction. No skill is required as it depends on the drawing of the cards and instructions. It depends upon the favourable card of the player, so there is luck/chance. There is no indication in the literature and instructions that it is providing amusement to children.
(v) The learned Authorized Representative submitted that all the items are like Ludo, Snakes & Ladders. It is seen from the game introduction of Ludo and Snakes & Ladders that the main element of games are competitiveness and there is no mention of any amusement and fun. But, on perusal of instructions of play of Chip N Dale and Duck Tales Disney and the nature of play, it is evident that the building of machine in Chip N Dale and to search treasure island in Duck Tales Disney are mainly fun or amusement of the children and the game rules are also simple and no such alertness, ability and acumen is required like Ludo, Snakes and Ladders. The instruction of play of Disney Sorry does not show any such fun or amusement to children. Hence, Chip N Dale and Duck Tales Disney cannot be considered as Game. But, we agree with the learned Authorized Representative that Disney Sorry is to be considered as Game.
(14) FOX & GEESE According to Revenue:-
The strategic Board Game similar to Draught which has been mentioned in HSN under 9504.90. This is played with pieces (geese) & fox. There are set of rules for the movement of the counter on the Board. Geese either capturing fox occupy all nine, have points. The fox wins if it wins as many as geese. Appears classifiable as board games of strategy under CSH 950.90 of CETA, 1985. To be considered as a GAME. According to Assessee:-
Toy - This is a very simple strategy 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 GAME for the reasons stated on left side column. According to Assessee:-
Toy - The players learn the art of balancing pieces on a balance. There are three kinds of pieces small, medium and large and each player tries to balance the board and move his pieces to the safety zone. This is a toy by the common parlance test, as the aim is to teach the child the concept of equalizing weights and balancing. There is no chance, only skill. Therefore, the SCs tests are also not satisfied.
Finding:-
The product literature indicates a game of strategy and suspense. Players move their playing pieces forward while either sacrificing or protecting them, in order to (1) tilt down the opponents side of board to earn point pieces and (2) end the game while ahead or equal in point pieces. At the beginning of the game, the leverage board is completely balances and level. As players move their pieces, the board becomes unbalanced but stays level until a player gains enough leverage to make one end to drop and rest upon the table. Typically, the game is ended when one player has moved all pieces of his removing (uncaptured). Playing pieces into the opponents safety zone the winner is the player who has removed the most Point Pieces. The outcome is not predetermined, skill is required and also chance. It to be considered as strategic game.
(16) JUNIOR MONOPOLY According to Revenue:-
It is similar to monopoly. The aim of the game is to be the player with most money and game is played by rolling the dice. For a similar item, already decided by Honble Supreme Court in Pleasantime Products Vs. CCE 2009 (243) ELT 641 (SC) According to Assessee:-
Toy - This game is different from Monopoly in the sense that the players are given no choice or decisions to make. The entire game is driven by the dice.
The outcome is not predetermined. Clues are not given. There is no skill, only chance.
Finding:-
We find that it is a similar to monopoly which the Honble SC already decided as a game. The learned senior counsel submits that this is a game different from monopoly in the sense that the players are given no choice or decision to make. The entire game is driven by dice.
It appears from the instruction of the game that roll the dice and move that number of steps. Follow any instruction on that step. Your chance card may say to take a ride and 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 Honble 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 his car on the way back to the Start / Finish is the winner. It is not sets comprising slot-racing motor cars with their track layout, having the character of competitive game as mentioned in HSN. It is predominantly a play thing, replica of car race, amusement of children cannot be considered as game.
(18) DISNEYS TALE SPIN:-
According to Revenue:-
It is a board game, also played by rolling the dice and moving the duck pawns in a clock wise direction as per the spaces shown in the game board. The winner is the one with most cargo points cards. It has elements of chance and no fixed outcome. Thus, it merits to be considered as a game According to Assessee:-
Toy In this game, the player must collect as many cargo points as possible. The points are collected by the player falling on certain spaces through turns of the dice, picking up cards. The outcome is not predetermined, since no one knows who will collect the most number of cargo points. There are no clues given. Since the game is only based on dice, there is no skill, only chance.
Finding:-
The game instruction indicates the aim of the game is to collect the maximum number of cargo. HOW TO WIN Each player must total up his or her Cargo Point cards. The player with the most cargo wins the game.
There is no clue, outcome is not predetermined. But, it is predominantly a competition of collection of cargo point to win the game rather than amusement and fun and can be considered as game.
(19) MOULD & PAINT According to Revenue:-
Plaster of Paris is put in the PVC mould to make different figures of fruit, vegetables, funny faces, nature, Disney. HSN Note clearly refers that mould for mineral (Plastic of Paris etc.) in the making of a toy is classifiable under CSH 8480.10. Thus, it appears these products correctly classifiable under 8480.10 of CETA, 1985 According to Assessee:-
Toy This is merely a set of paints and clay for modeling. The test cannot be applied to this product, as it is clearly a toy and not a game in any sense.
Finding:-
It is seen from label of game box that it contained plaster, mould, paint, brush and magnets. It improves concentration and also increase creative skill. It appears from the product instruction that mix about 120 gms of plaster (about 15 teaspoons full) and 80 ml of water (about 1/3rd of a tea cup) and the packet of special 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) GAMES OF GAMES According to Revenue:-
This is a classic Board Game which contain 14 games which are played as per some set rules. Point earned through each game played by the player are cause to movement of the Pawns to the squares. Appears to be classified Like Board games of ludo. Here the movement of Counter (Pun) is governed by the points earned while playing 14 games. Appears classifiable as Board game under CSH 9504.90 of CETA, 1985. It depends on movement of Pawns and movement of counter. It has elements of chance and no fixed outcome. It merits to be considered as a game.
According to Assessee:-
Toy; reduced size model - This game contains various reduced sized models of real life games such as golf, snooker, skittles, etc. Players take turns to play each such game and the winner of most of the games wins the game. Conditions laid down by SC cannot be applied, since the case is not that it is a puzzle.
This is an amalgam of various real life games, whose size is reduced to fit on a single board. This is a reduced size model falling under Heading 9503.
Finding:-
It is a collection of 14 games, Skittles, Bowling, Snooker, Rink, Hoopla, Golf, Roulette, World Chain, Roped Fire, Spy with my eye, Game of numbers, Game 13, Score More.
The winner who is the first to reach the finished square wins the game. It contains various games. This is an amalgam of various real life games. It is predominantly a play thing. Toys imitate in miniature the world familiar to children. This is reduced size models of various games and should be considered under S.H. 9503.
(21) TRAVEL SNAKES & LADDERS According to Revenue:-
Similarly classifiable as Board Games of CSH 9504.90 of CETA, 1985.
According to Assessee:-
Toy The objective is to get all ones pieces to the opposite end by either moving one space, or jumping over another piece. The outcome is predetermined. Clues are not given. There is no skill, only chance Finding:-
Choose a starting player. Players take turn at moving one of their pegs. Pegs can be moved either:-
(a) by moving along a black line to an adjacent empty hole, or
(b) by jumping over one peg at a time, along a black line, to an adjacent empty hole at the other side (you may jump over your own or opponents pegs). You may jump over more than one peg per turn provided there is an empty hole between each 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 Honble 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 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 involved in Scrabble.
(22) BEELINE According to Revenue:-
Board game of skilled chance appears classifiable under CH. SH 9504.90 and not under CH. SH 9503.00 as claimed by the assessee. Players take turns to place bees of a specific colour as per rules. If they cannot place, they will loose. It has elements of chance and no fixed outcome. Thus, it merits to be considered as a game. According to Assessee:-
Players take turns to place bees of a specified colour according to certain rules. When the player cannot place a bee under those rules, he looses the game. Outcome is predetermined. Clues are given in the form of rules. Element of skill, no element of chance Finding:-
It appears from the game rules that the object of the game is to play your Bees in the honeycombs so that other player cannot plan their Bees in the honeycomb. The starter then places one of his or her Bees in any cell of the honeycomb. A Bee can be placed only in an empty cell. It is particularly aiming to win the game by maximum bees in honeycomb of the same colour. The outcome is not predetermined and no clue is given. There is also luck and chance. It requires skill in placing a bee in a cell. So it cannot be considered as puzzle.
(23) DRAGSTER According to Revenue:-
HSN clearly mentions that sets comparing slot (hole) racing motor cars with their track layouts having the character of competitive games to be classifiable under CSH 9504.90. Therefore, Dragster appears classifiable under CSH 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 Revenue:-
The game is a board game played with pieces strategically to attack the flag of the opponent to win. The game is similar to strategy game like Chess. Instead of King, Queen Bishop Knight, Pawns etc. as in Chess, here pieces are called General, Colonel, Lieutenants. Appears classifiable under CSH 9504.90 of CETA, 1985 as HSN Note clearly specified Chess under CSH 9504.90. This strategic Board is similar to Chess. To be considered as a game, in view of its similarity to chess. According to Assessee:-
Puzzle In this game, players advance their pieces to try and capture the enemies through various sets of maneuvers. This is in the nature of a puzzle. Outcome is predetermined. Clues are given. No element of chance, only skill.
Finding:-
The product literature indicates the classic game of battlefield strategy insofar as plan for advance, challenge or opposition and capture the enemy flat. The object of the game is that stratego is a game where skillful planning, clever deception and good memory work are used to defeat your opponent. Every time you play, the battle is different. Your Marshal is your strongest man but vulnerable if not protected from the Spy. Your Scouts are weak but mobile and effective in discovering your enemys manpower. You need the skills of Miners to disarm enemy bombs, so dont lose them all early in the battle. Plant your bombs skillfully. They will protect the most precious piece on the gameboard, your flag. You and your opponent alternate turns. The red player moves first. On your turn you can do one of the following: Move one of your playing pieces to an open adjacent space - or Attack one of your opponents playing pieces. It is akin to chess game and would cover under SH 9504.
(25) PICTIONARY According to Revenue:-
It is also a Board game and the object of the game is to identify through sketched clues as many as necessary to advance the playing pieces to the finishing square in the game board and correctly identify the final word. No literature. Element of skill and chance. According to Assessee:-
Puzzle - In this game, clues are given via drawings by a player to his teammates so that they may guess what he is drawing. Outcome is predetermined. Clues are given. No chance only skill.
Finding:-
The object of the play is to identify through sketched clues as many words as necessary to advance 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 that they must answer in order to get ahead to the next class. The outcome is predetermined. There are clues given. There is no chance, only skill Finding:-
The product literature indicates the Fun Family Quiz Game with over 1000 Brain-Testing Questions. The object of the game is to answer questions correctly, and be first to reach the diploma at the head of the Final Exam classroom.
The class rooms: There are 8 class rooms on the game board. Each class room teaches a different subject: Language, History etc. To move ahead, a player must answer questions correctly in the subject taught in the classroom he or she currently occupies.
The Desks: Each desk on the game board represents a game space. Players move ahead desk by desk, counting each desk as a space. The dots and arrows connect the desks and classrooms to form a path, which begins in the Language classroom and ends at the diploma just beyond the Final Exam classroom. We have seen that the game instruction contained Quiz Book on different subjects, such as, Language, Science, Art & Music, Mathematics, History, Literature, Geography,. The players are solving the questions predominantly to arrive at the solution by finding correct answer from the Quiz Book and therefore it should be considered as educational toy rather than Puzzle.
8. After examining each of the 26 items as above, as per tests enunciated by the Honble Supreme Court in the case of Pleasantime Products (supra), Chapter 95 of the CETA, 1985, HSN Notes and product literature and instruction of each item, we are in a considered view that the following items should be classified under 95.03:-
1. City Games (Paris)
2. City Games (London)
3. City Games (USA)
4. City Games (India)
5. Match & Move Memory
6. Chip N Dale
7. Duck Tale Disney
8. Fox & Geese
9. Rally
10. Games of Games
11. Go To The Head of the Class
12. Mould & Paint
9. All other items except mentioned in para 8 would be considered as GAMES and covered under Heading 95.04. In view of the above discussions, we modify the impugned orders insofar as the Assessee is required to pay the duty along with interest for all the items in dispute except the items as mentioned in paragraph 8 as above under Heading 9504.00. The Honble Supreme Court directed that the demand of duty should be restricted for the normal period of limitation under 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 _________) Separate Order Sd/- (Mathew John) (P.K. Das) Technical Member Judicial Member 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 findings separately because the reasoning being adopted is not fully concurrent.
13. Out of the 12 items for which my Ld. Brother has given a finding in favour of classification under 95.03, I am not agreeing with the classification in the case of the following disputed items:-
(i) ChipN Dale
(ii) Duck Tale Disney
(iii) Fox and geese
(iv) Rally
14. In the case the above four items, I hold that the items are classifiable under heading 9504.90. In the case of the other items, I agree with the classification under heading 9503.00 as held by my Ld. Brother though I differ slightly in findings given and I am stating those.
15. The history of these appeals and the directions given by the Hon. Apex Court has been recorded by my Ld. Brother and I do not repeat the same. Before proceeding with my finding, firstly I note that all these items are marketed by the appellants as Games as seen from the packing. However, this fact cannot be the sole criterion in coming to the conclusion that all the 26 items are games classifiable under heading 95.04 having regard to the fact that the Hon. Apex Court has given specific directions as to how the issue is to be examined in this de-novo proceeding.
16. I also note that the Apex Court in an order dated 12-11-2009 in the case of appellant, made the observation that for deciding the classification, the age of the players of the game cannot be a criterion. Though this observation is not seen in the re-dictated order dated 25-01-2010, this view of the Hon. Apex Court has to be borne in mind while deciding the merits of the classification of items presently under dispute.
17. Before proceeding further, I want to observe that the contest regarding classification of Snakes and Ladders given up by the appellant is not merely a matter of a concession given by appellant as argued by the Ld. Senior Advocate. The classification agreed to by the appellant is what is prescribed by HSN notes. I note that HSN notes clearly mention that Boards and Pieces (chessmen, draughtsmen, etc.) for games of chess draughts, dominoes, mah-jong, halma, ludo, snakes and ladders etc are specifically stated to be covered under heading 95.04 The appellant did not contest the classification of Monopoly and most of the items now under dispute have the essential nature of Monopoly and other games like Draughts, Snakes and Ladders etc. 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 contested that outcome of certain games (like Pay Day, Hotel etc) are pre-determined and in certain games (like Bee Line, Stratego) clues are given. I am not able to agree with these contentions. For this I state my understanding of what is meant by a pre-determined outcome. Puzzles like in the case of a cross-word, su do ko or a Rubic Cube, the outcome for solving the puzzle is pre-determined and there is only one solution. It is in such a situation that it can be considered to be a case involving pre-determined outcome. In a game where the winner is decided by a rule that the winner has to reach a specified place in a board,or get higher points or similar criteria, following rules of the game, it cannot a case of pre-determined outcome. Actually this issue is relevant only in cases where the appellant is claiming the item to be a puzzle that is only in respect of 5 items. However since there is a claim in other cases also that the outcome is pre-determined I am giving my finding on the issue. My finding is that in none of the items outcome is pre-determined.
20. Secondly rules of a board game cannot considered as clues because any game has to be played according to rules. A clue exists in the case of a cross-word puzzle. No clue exists in the case of su do ko (This is mentioned only as an example and this is not an item in dispute), because su do ko is played just by rules regarding the numbers which should be there in the nine boxes in each row and in each column and in each of the nine blocks. In the case of a jigsaw, wherein a picture to be built using different pieces, the final picture that has to emerge acts as a clue. Based on understanding of clue as explained above there is no clue givenin any of the 26 items. There can be a slight doubt in the case of the item Pictionary. In the case of Pictionary a member of a team tries to give clues to another member regarding the word to be deciphered using his drawing skill. This is game like the popular dumb shararat (or what is the good word?) except that clue is given by drawing and not by action. This game involves giving clues by drawingwhich another person of the same team can understand. The skill of the first person in drawing and the skill of the other person in understanding the drawing are at test.This is not a case where clues are given as part of the rules of game. So I consider that in this case 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) No No Yes No 3 Games of States (USA) No No Yes No 4 Games of states (India) No No Yes No 5 Match An Move Memory No No No Yes 6 Pay Day No No Yes Yes 7 Hotel No No Yes Yes 8 Chips N Dale No No Yes Yes 9 Disney Sorry No No Yes Yes 10 Duck Tales Disney No No Yes Yes 11 Fox and Geese No No No Yes 12 Leverage No No No Yes 13 Travel Ludo No No Yes Yes 14 Travel Chinese Checkers No No Yes Yes 15 Travel Chess and Draughts No No Yes Yes 16 Junior Monopoly No No Yes Yes 17 Rally No No 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 25 Pictionary No No No Yes 26 Go to the head of Class No No Yes Yes
22. Now the question is to be decided is whether each of the items can be considered as a game or a toy. The criteria for these are given in paras 18, 19 and 20 of the judgement.
Para 18 of the judgement reads as under:
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 Strouds Judicial Dictionary, a game is a form of a play or sport especially a competitive one, played according to rules and decided by skill and chance. According to Words and Phrases, Permanent Edition, the instruments by which chance may be developed and upon which skill may be exercised are also games - such as cards, dice, balls, figures, letters, checks etc. Therefore in a game there is a trial of skill or chance between two or more contesting parties according to some rule(s) by which one may succeed or fail. It is a contest for success, for a trial of chance or skill and it embraces every contrivance which has for its object sport, recreation or amusement. These are the various dictionary meanings of the word game. Applying the dictionary meaning, we are of the view that Scrabble is a board game. It is not a puzzle. In the circumstances, it falls under Heading 95.04 and not under sub-heading 9503.00 of the CETA.
23. All the items except Mould & Paint and out of the 26 items satisfy the criteria of trial of skill or chance between two or more contesting parties according to some rules by which one may succeed or fail. As observed by the Apex Court a game is a contest for success, for trial of chance or skill and it embraces every contrivance which has its object as sport, recreation or amusement. So a game cannot be classified as toy because there is some amusement in playing it. So the argument of the appellant that the test laid down by Apex Court cannot be applied is not correct for any item as far as classification as game is concerned. Such contention can arise when the appellant wants to contest that the item is 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. However, as stated above, Scrabble (a branded word game) is not a puzzle as in Scrabble there is no fixed outcome, there is no clue as in the case of a puzzle and there is an element of skill and chance.
20.?According to The Concise Oxford English Dictionary, Tenth Edition, a toy is an object for a child to play with, typically a model or miniature, replica of something. The gadget or a machine providing amusement is a toy. In 1914 even a car was a toy for a rich man. According to Strouds Judicial Dictionary, Fifth Edition, construction kits for making model are toys and games. According to Encyclopaedia Americana originally a toy was made for adults rather than children, however, by 19th century the word came to denote a childs play-thing. According to Encyclopaedia 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 Encyclopaedia 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. Applying these tests, we are of the view that even a Junior Scrabble will not fall in the category of educational toys. As stated earlier, the two main elements of Scrabble are - chance and skill. These elements are absent in a toy. Hence even a Junior Scrabble 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 also persuaded me to come to this conclusion. Item Game of Games satisfies criteria at (i) above because the board that is used looks like a miniature golf course. The Board also provides a miniature version of Snooker, Hooplah is taken into account for coming to this conclusion though there are other games which can be played using the Board and material provided which games are purely in the nature of game with characteristics as described in para 18 of the judgement. Thus I am agreeing with the final outcome as recorded by my Ld. Brother for these items though the reasoning is somewhat different. . There is similar claim in respect of Travel Ludo, Travel Chinese Checkers and Travel Snakes and Ladders. However these are just boards suitable for playing the concerned game during Travel with no change in essential nature of the game played with respective names. This cannot be considered as miniature of the respective game board and considered to be reduced sized models. So I agree with the finding of my Ld. Brother that these are games classifiable under 95.04.90.
27. Now I would like to examine other items which have educational value and it will fall under the category of educational toy. The items I propose to cover are 1) City of Games (Paris), 2) City of Games (London), 3) City of Games (USA) and (4) City of Games (India). The first two games teach children about places which have historical or other importance in the two cities. In the case the latter two products it teaches about places and its produce of USA or India as the case may be. The predominant nature of the games is educative in nature. The Apex Court has ruled that educational jigsaws merit classification as educational toy as per the guideline in para 21 of the order of the Apex Court in Pleasantime Product (Supra). In this context I looked up the website http://www.jigsaw.org/overview.htm and saw the following write up about jigsaw class room Overview of the Technique The jigsaw classroom is a cooperative learning technique with a three-decade track record of successfully reducing racial conflict and increasing positive educational outcomes. Just as in a jigsaw puzzle, each piece--each student's part--is essential for the completion and full understanding of the final product. If each student's part is essential, then each student is essential; and that is precisely what 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 it back to their jigsaw group. Instead, they meet first with students who have the identical assignment (one from each jigsaw group). For example, students assigned to the atom bomb topic meet as a team of specialists, gathering information, becoming experts on their topic, and rehearsing their presentations. We call this the "expert" group. It is particularly useful for students who might have initial difficulty learning or organizing their part of the assignment, for it allows them to hear and rehearse with other "experts."
Once each presenter is up to speed, the jigsaw groups reconvene in their initial heterogeneous configuration. The atom bomb expert in each group teaches the other group members about the development of the atom bomb. Each student in each group educates the whole group about her or his specialty. Students are then tested on what they have learned about World War II from their fellow group member.
What is the benefit of the jigsaw classroom? First and foremost, it is a remarkably efficient way to learn the material. But even more important, the jigsaw process encourages listening, engagement, and empathy by giving each member of the group an essential part to play in the academic activity. Group members must work together as a team to accomplish a common goal; each person depends on all the others. No student can succeed completely unless everyone works well together as a team. This "cooperation by design" facilitates interaction among all students in the class, leading them to value each other as contributors to their common task.
28. In the context of such changing methods of education which have been taken note of by the Hon Apex Court also in para 20 of the judgementthe four items mentioned above are to be classified as educational toys. So I agree with the finding given by my Ld. Brother on these items.
29. Another item which can answer this test is the item by name Go to the Head of Class. In this case the essential part of winning the game is to give answers to specified questions under various branches of knowledge. This game works almost like a quiz competition. So it has an educational value and it is pre-dominant. Though this is claimed to be puzzle by the appellant for the sake of achieving a common thread of logic I agree with the finding of my Ld. Brother that this item should be considered as an educational toy 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 24 Machine part cards and divide them into 4 even piles of 6 cards each. Place each pile faceup on an orange rectangle.
3. Take 3 Zipper tokens and place them faceup in front of you. All players do the same Place any unused tokens out of play.
4. Each player rolls the die. Highest roller goes first. Play continues to the left.
GAME PLAY WHAT TO DO ON YOUR TURN * Roll the die and move your pawn the number of spaces shown on the die.
* Always move your pawn clockwise around the gameboard. More than 1 pawn may share the same space.
* Follow the directions, if any, on the space you land on. Your turn is then over.
Zipper Tokens * Zipper tokens help you move farther by adding to your die roll. Each Zipper token you use adds 1 to your roll.
* To use a Zipper token, turn it facedown after you roll. You may use as many of your tokens as you wish, but only those which are faceup. For example, if you roll a 1, you may use 2 Zipper tokens to move 3 spaces.
GAMEBOARD SPACES > If you land on this space by exact count and you have any Zipper tokens turned facedown, you may turn one of them faceup again. If al your Zipper tokens are faceup, do nothing. Your turn is over.
> If you land on this space by exact count, you may trade places on the gameboard with any other player. Just swap spaces with the chosen pawn and follow the directions, if any, on that space. Your turn is over.
> If you land on this space by exact count, move to any STOP! PICK UP 1 PART space. Follow the directions for landing on that space. Your turn is over.
> If you land on this space by exact count, take 1 Machine Part card from any player. If no players have Machine Part cards, do nothing. Your turn is over.
> If you land on the Professor Nimnul space by exact count, you must place 1 of your Machine Part cards back on any orange rectangle. If you have no Machine Part cards, do nothing. Your turn is over.
> This space is WILD! Your may use it to change paths, as shown in Figure 1. As you pass through the WILD space, continue moving in the direction of the arrow.
FIGURE 1 You rolled a 5, You may use the WILD space to change paths instead of continuing on the path of gray line.
If you are able to land on the WILD space by exact count, move your pawn to any space on the gameboard and follow the directions on that space. Your turn is over.
* 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 Part cards.
To see that your finished machine will look like, take a look at the black and white Model Machine from the cardboard platform. Notice the 2 cards marked "A" and "B" on the Model machine. The Machine parts on these cards must be the same color in order for you to use them in your machine. For example, if the part on card "" is red, then the part on card "B" must also be red.
Cards "E" and "F" must also match by color, but they do not have to be the same color as "A" and "B". In other words, "A" and "B" can be red, while "E" and "F" can be blue.
Cards "C" and "D" are the same colors for all machines and therefore do not have to match any other cards.
NOTE: If you find yourself with extra Machine Part cards, hang on to them!. They'll come in handy when you land on a Professor Nimnul space or when an opponent lands on a STEAL space!.
WINING THE GAME The first player to complete a Magic machine with 6 cards wins the game!.
The back ground story given is of no significance in playing the game or winning it. For winning this game the winner has to collect six pieces satisfying certain rules. This game has no educational value but is a competition based on chance and skill. This is just in the nature of the game of Monopoly. It has more competitive element than snake and ladder. It does not satisfy any of the criteria laid down by the Apex Court for toys.
30.2 Duck Tales Disney The product literature of this item is reproduced below:
CONTENTS :Gameboard, 7 Playing pieces with plastic stands, 1 Spinner, 4 Treasure tokens, 8 Wild Cards Uncle Scrooge and his nephews are after a tropical island treasure. Big Time Beagle, Magica De Spell and Flintheart Glomgold are after them! Can they escape to the helicopter with the gold?
OBJECT To be the first player to reach the FINISH Space with a Treasure token.
SETUP
1. Carefully punch out the spinner and its 2 bases from the cardboard platform. Assemble spinner as shown in Figure 1.
2. Carefully punch out the 7 playing pieces. Fold each one on the 'old line, then fit it into a stand. Use black stands for the 3 "Bad Guy' playing pieces: MagciaDe Spell, Flintheart and Big Time Beagle. Use coloured stands for Uncle Scrooge. Huey Dewey and Louie.
3. Choose your playing piece - Scrooge, Huey, Dewey or Louie- and place it on the Start Arrow. All players do 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 TOKEN). After collecting a token, each player makes a dash for the FINISH Space! Move your playing 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 another player's playing piece, move your playing piece to the next open space. * If you land on or pass a Bad Guy. you get captured! See CAPTURING.
MOVING A BAD GUY Usually.you'll want to move a Bed Guy toward an opponent's playing piece to capture it-or away from your own playing piece, to avoid getting captured. Move Bad Guys as follows:
* To move a Bad Guy onto the path from its Hiding Space, take either of the 2 paths the arrows point to.
* A Bad Guy can pass another Bad Guy as it moves. If a Bad Guy ends its move on a space occupied by another Bad Guy. It must move to the next open space.
"If a Bad Guy lands on or passes a playing piece, it captures the playing piece! See CAPTURING, below.
SHORTCUTS Playing pieces and Bad Guys may both use any log or bridge as a shortcut. To use a shortcut, move from the space on one side of the log or bridge, directly to the space on the other side. Do not count the log or bridge as a space.
CAPTURING A Bad Guy can capture a playing piece in 2 ways:
1) When a Bad Guy lands on or passes a playing piece.
2) When a playing piece lands on or passes a Bad Guy.
If your playing piece gets captured, move it immediately to the capturing Bad Guy's Hiding Space. Any number of playing pieces can share a Hiding Space On your next turn.spin as usual. then take either of the 2 paths the arrows point to.
COLLECTING A TREASURE TOKEN You must collect a Treasure token before reaching the FINISH space. Collect your token when you land on or pass the Treasure Space. Then continue moving if you have any spaces left.
If your playing piece gets captured on the Treasure Space Collect your token before moving to the Bad Guy's Hiding Space.
WILD CARDS AND WILD CARD SPACES Wild Cards: These cards let you move any Bad Guy you choose on your turn, no matter what you spin. Use a Wild Card as follows:
1. At the beginning of your turn, announce that you're using a Wild Card, and flip the card facedown. Then announce which Bad Guy 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 classification of this item should be different from that of Snakes and Ladders.It does not satisfy any of the criteria laid down by the Apex Court for toys.
30.3 Fox and Geese.
The product literature of this item is reproduced below:
Contents : Game Board 13 Geese Tokens 1 fox token No. of players: 2 One player plays for all 13 Geese One player plays for the fox Aim of the Game:
For the player playing for the Geese, the aim is to try and catch the fox or occupy all 9 "Home points of the fox.
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.
Game play :
Place the Geese and Fox in position as shown in the figure and decide which player will play for the fox and which player for the geese. The player who is playing for the Geese moves during his turn along a line - either forward or sideways to a vacant adjacent point. The geese cannot move diagonally or back-wards.
The player who is playing for the fox, moves during his turn to an adjacent vacant point either forward, backward, .sideways or diagonally.
The fox can catch the goose by jumping in a straight line over the goose to the next unoccupied point. In this case, the goose jumped over by the fox will be removed from the board. The fox has to try to catch as many geese as possible in one go. The fox also cannot jump over two consecutive or more geese in one go.
Winner The Geese win if they :
a) Capture the fox completely i.e. making any move impossible for the fox.
b) Occupy all nine "home points" of the fox.
The Fox wins if he captures as many geese so that not enough geese are left to be captured by the fox anymore. This game is in the nature of Draughts or Chess and more like draughts than Chess because Chess is much more complicated. In the game of Fox and Geese one side has one Fox to play with and the opposite side has 13 Geese to play with. The movement rules for both the pieces are different and the criteria for success or failure for the two sides are different. The side playing Fox wins if the Fox captures all the Geese following rules of movement of the game. The side playing Geese wins if the Geese are able to occupy all the nine home points of Fox or in a situation where any next move is impossible for the Fox according to 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 who throws the highest starts first - Move clockwise.
Game Play :
1) The first player will have to take a card from the top of the pile and place it next to the Start / Finish card.
2) The next players on their turn may,
a) take the upper card from the pile, put it next to the card which was laid out last so that a route can be built up starting from the Start / Finish card. OR
b) throw the dice and move the car towards as many compartments as thrown by the dice.
3) If you throw that many points that you go beyond the last card laid out, then you skip your turn and stay put where you are.
4) You always have to connect the card drawn from the pile to the card which was laid down last.
5) If you land on one of the compartments of the
a) "bull" card (ie. the card with the picture of the bull on it); move forward the same number of positions by which you landed.
b) "hay-wagon" card (i.e. the card with the picture of the hay-wagon on it); nobody is allowed to pass you as long as you have not passed the haywagon card. Pay attention !only one car is allowed to stand on each and every compartment of this card.
c) "Geese" or "Sheep" card (ie. the card with the picture of geese or sheep on it); You have to skip one turn.
6) As soon as the "turning point" card which is the last card of the route has been laid down on the table, you turn with your car around the turning point and follow the way back to the Start / Finish card.
The Winner The player who is the first to arrive with his car on the way back to the "Start / 'Finish" card is the WINNER. This is a game just like Snakes and Ladders the major difference being that the game is played with a toy car of very small size to take the role of a peg in the case of Snakes and Ladders. This game is classifiable along with Snakes and Ladders which is specifically mentioned in HSN. It does not satisfy any of the criteria laid down by the Apex Court for toys.
31. In the case of 14 items listed below I am agreeing with the finding of the Ld. Brother that the following items are Games under heading 95.04.
S. No. Items 1 Pay Day 2 Hotel 3 Travel Ludo 4 Travel Chinese Checkers 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. Heading 9503 1 City of Games (Paris) 2 City of Games (London) 3 Games of States (USA) 4 Games of States (India) 5 Match & Move Memory 6 Mould & Paints 7 Game of Games 8 Go to the Head of Class
34. As already recorded, in the following 4 items, there is a difference of opinion with Member (Judicial) holding that these items are classifiable under Heading 9503 while I am of the view that the said four items are classifiable under Heading 9504.90.
S. No. Item 1 Chip N Dale 2 Duck Tale Disney 3 Fox and Geese 4 Rally Sd/-
(MATHEW JOHN) TECHNICAL MEMBER
35. We, therefore, formulate the following questions of difference of opinion for resolving the same by a third Member.
POINTS OF DIFFERENCE
a) Whether the products (a) Chip N Dale, (b) Duck Tale Disney, (c) Fox and Geese and (d) Rally are classifiable under heading 9503.00 as held by Judicial Member (OR)
b) Whether the products (a) Chip N Dale, (b) Duck Tale Disney, (c) Fox and Geese and (d) Rally are classifiable under heading 9504.90 as held by Technical Member.
(Pronounced in court on 10.2.2014)
Sd/- Sd/-
(MATHEW JOHN) (P.K.DAS) TECHNICAL MEMBER JUDICIAL MEMBER
The Registry is directed to place the matter before the Hon'ble President, CESTAT to nominate a third Member for resolving the point of difference.
Sd/- Sd/- (MATHEW JOHN) (P.K.DAS) TECHNICAL MEMBER JUDICIAL MEMBER Per Rakesh Kumar:-
36. The appellant are manufacturers of toys and games. The period of dispute in this case is from November 1996 to June 2001. During this period, while Heading 95.03 of the Central Excise Tariff covered "Other toys"; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds", the Heading 95.04 covered "Articles for funfair, table or parlour games, including pintables, billiards, special tables for casino games and automatic bowling alley equipment". 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 their separate orders have decided the classification of the disputed items manufactured by appellant by applying the above mentioned judgement of the Apex Court and the difference is only in respect of the classification of the four products mentioned above.
38. Heard both sides in respect of the point of difference.
39. Shri Arvind P.Datar, Senior Advocate, the learned counsel for the appellant, pleaded that while 'Chip N Dale' and 'Rally' consist of a board and a dice, 'Duck Tale Disney' consists of a board and a spinner which generates numbers from 1 to 6, and the product 'Fox and Geese' consists of a board on which the players can move one square at a time either horizontally or straight or diagonally as per the rules of the game; that while in respect of products, 'Chip N Dale', 'Duck Tale Disney' and 'Rally', absolutely no skill is required and the outcome depends purely on chance and these games are played predominantly for fun and hence are a plaything for the children; the product 'Fox and Geese' requires only very low level of skill and hence is a game predominantly for fun and, therefore, a plaything for the children; that all the four products, in question, are board games for amusement and are basically the objects for the children to play with; that in terms of para-21 of the Apex Court's judgment in the case of Pleasantime Products (supra), the toys are the objects which are predominantly for amusement of the children and as such are the objects for the children to play with; that in these board games, either no skill is required or very little skill is required and, hence, the same would not be classifiable as "games" under sub-heading 9504.90 as in terms of para-18 of the Apex Court judgment in the case of Pleasantime Products (supra), a game is a form of play or sport, specially a competitive one, played according to the rules and decided by skill and chance and thus a game must necessarily involve an element of skill, while its outcome is decided by a combination of skill and chance; and that since in respect of the products, in question, either no skill or very little skill is required and the predominant object of these products is amusement of the children, the same cannot be classified as "games' under sub-heading 9504.90 but would be classifiable as "toys" under 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 Disney', 'Fox and Geese' and 'Rally' under 95.03.
40. Shri M. Rammohan Rao, learned Departmental Representative, supporting the order recorded by learned Member (Technical), pleaded that in terms of para-18 of the apex court's judgment in the case of Pleasantime Products (supra), a game is played according to rules, its outcome is not predetermined and the same involves competition and the outcome is dependent upon the element of skill and the element of chance; that all the four products, in question, satisfy the criteria for "game" as prescribed in para-18 of the judgment and moreover, all the four products are board games, specifically covered by Heading 95.04; that the Apex Court itself in its order dt. 25.1.2010 while remanding the question of classification of certain products including the products, in question, to the Tribunal for decision, has upheld the classification of "Snakes and Ladders" and monopoly under Heading 95.04 as game, that the products "Chip and Dale", "Duck Tale Disney" and "Rally" are very much like 'Snakes and Ladders' games; that when the Apex Court has upheld the classification of "Snakes and Ladders" under Heading 95.04, there is absolutely no justification to classify the products, in question, as toys under 95.03; that during the period of dispute, Heading 95.03 and 95.04 of the Central Excise Act were based on the HSN Heading 95.03 and 95.04 respectively and hence the scope of these Headings of the Central Excise Tariff would be the same as the scope of the same headings in the HSN; that in terms of HSN Explanatory Notes to Heading 95.04, this heading includes "boards and pieces (chess and draughts etc.) for the games of chess, draughts, dominos, Halma, Mah Jong, Ludo, Snakes and Ladders etc; that the Apex Court's judgement upholding classification of 'Snakes and Ladders' under 95.04 is based on HSN Explanatory Notes which have persuasive value for determining the classification in the Central Excise Tariff; that the Apex Court's order upholding classification of 'Snakes and Ladders' under 95.04 cannot be treated as based on concession made by the appellant; that as regards "Fox and Geese", this game involves an element of skill and competition and the outcome is determined not purely by chance but by skill and chance; that this game is more like the game of chess and, 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). On going through the technical literature of these products, it is seen that:-
(a) all the four products are board games consisting of a playing board and playing pieces;
(b) while 'Chip N Dale' and 'Rally' have a dice, 'Duck Tale Disney' has a spinner and as per the outcome of throwing of dice/spinning of the spinner, the playing pieces are moved by the player;
(c) in 'Chip N Dale', 'Duck Tale Disney', and 'Rally', the movement of playing pieces is decided purely by the outcome of dice/spinner which can be any number from 1 to 6 and thus the outcome of the game is dependant purely on chance and not on the skill of the player and in this regard, these games are like the games of 'Ludo' and 'Snakes & Ladders'; and
(d) the game "Fox and Geese" consists of a game board and plastic pieces representing Geese and Fox 13 Geese tokens and one fox token. 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 sideways to a vacant adjacent point. The geese cannot move diagonally or backwards. The Geese wins if they occupy all the nine home points of the fox or capture the fox completely i.e. making any move impossible for the fox. The fox wins if he captures as many geese so that not enough geese are left to be captured by the fox any more. This game is more like the game of chess and involves skill and its outcome depends mainly upon the skill of a player.
42. The appellant's plea is that all the four products, in question, are meant predominately for the amusement of children and are a plaything for children and the same either do not involve any skill or involve very little skill and hence in terms of the criteria prescribed by the Apex Court in para 20 & 21 of its judgment in the case of Pleasantime Products (supra), the same have to be treated as "Toys" classifiable under Heading 95.03. The Department's contention is that while 'Chip N Dale', 'Duck Tale Disney' and 'Rally' are board games like 'Snakes & Ladders' whose classification has been affirmed by the Apex Court in its order dt. 25.1.2010 in the case 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 95.03 9503.00 Other toys; reduced-size (scale) models and similar recreational models, working or not; puzzles of all kinds NIL 95.04 Articles for funfair, table or parlour games, including pintables, billiards, special tables for casino games and automatic bowling alley equipment 9504.10 Playing cards NIL 9504.90 Other 16% TOYS, GAMES AND SPORTS REQUISITES; PARTS AND ACCESSORIES THEREOF
44. Before coming to the points of dispute in this case, it would be worthwhile examining the corresponding headings in the HSN and also the respective Explanatory Notes. It is seen that during the period of dispute Heading 95.01, 95.02, 95.03 and Heading 95.04 of the Central Excise Tariff were identical to HSN Heading 95.01, 95.02, 95.03 and 95.04 respectively. While Heading 95.01 and 95.02 covers wheeled toys designed to be ridden by children (for example, tricycles, scooters, pedal cars); dolls carriages and Dolls representing only human beings, Heading 95.03 covers Others toys; reduced-size (Scale) models and similar recreational models, working or not; puzzles of all kinds. Heading 95.04 of the Central Excise Tariff as well as of the HSN covers Articles for funfair, tables or parlour games, including pintables, billiards, special tables for casino game and automatic bowling alley equipment. While sub-heading 9504.10 of the Central Excise Tariff covers Playing Cards, sub-heading 9504.90 covers other games. Since Central Excise Tariff Heading 95.03 and 95.04 are identical to the HSN heading 95.03 and 95.04 respectively, the scope of the Central Excise Tariff Heading 95.03 and 95.04 would be identical to the scope of the corresponding HSN Heading 95.03 and 95.04. It is settled law that when a heading in the Central Excise Tariff is based on and is identical to a heading, the explanatory notes to that heading in the HSN have persuasive value for determining the scope of the same heading in the Central Excise Tariff, unless a different intention is indicated on the Tariff itself [Apex Courts judgments in the cases of Collector of Central 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 guide for determining as to how a particular HSN heading is understood in trade and commerce parlance across the world, which, in turn, in absence of any intention to the contrary in the Central Excise Tariff, would be the basis of determining the scope of the heading in the Central Excise Tariff which is based on the HSN heading.
44.1 According to the Explanatory Note to the HSN heading 95.04, this heading among other items, includes Boards and Pieces (chessman, draughtsman etc.) for games of chess, draughts, dominoes, mah jong, halma, ludo, snakes and ladders etc. Since according to the HSN Explanatory Notes Heading 95.04, the board games like chess, draughts, dominoes, mah-jong, halma, ludo, snakes and ladders etc. are covered by this HSN heading, the Central Excise Tariff heading 95.04, which is identical to HSN heading 95.04, would also cover the Board games like chess, draughts, dominoes, mah-jong, halma, ludo, snakes and ladders etc., as no different intention has been indicated in the Central Excise Tariff by the way of any chapter note to chapter 95 excluding such Board games from the purview of heading 9504. It is probably for this reason that the appellant in the course of proceedings before the Apex Court have conceded the classification of the snakes and ladders and 'Monopoly' as Game under sub heading 9504.90. The Apex Court in its order dt. 25.01.2010 in the case of the appellant has, however, remanded the issue of classification of other games in accordance with the principles laid down in its judgment in the case of Pleasantime Products Vs. CCE Mumbai-I (Supra).
44.2. The Apex Court in its judgment in Pleasantime Products (Supra) while deciding the question of classification of a product called Scrabble - whether it is a toy under 95.03 or it is a Game under sub-heading 9504.90, has in para 18 of the judgment, laid down the criteria as what is to be treated as Game and in paras 20 to 21 has made the observations as to which products are to be treated as toys. According to the criteria laid down in para-18 of the judgment, a game is something which is played according to the rules, whose outcome is not predetermined, but is determined by skill and chance and there is an element of competitiveness. It is on the basis of this criteria that the Apex Court held that Scrabble is a game 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 as to how he should move in order to win. Unlike the games- Ludo or Snakes & Ladders, the moves are not decide by chance i.e. numbers obtained by throwing of the dice or spinning a spinner. This game, thus, is more like the game of chess and involves skill and its outcome depends mainly upon the skill of the player. There is also an element of competitiveness. Therefore, I hold that 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 (Supra), this game, which is a board game, has to be classified as a game under sub-heading 9504.90 of the Tariff.
46. Coming to the 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. In Chip N Dale, and Rally, the moves of the players are decided on the basis of outcome of throwing of the dice and in the case of Duck Tale Disney, on the basis of numbers from 1 to 6 obtained by spinning of the spinners. These games are more like the games of Ludo and Snakes & Ladders, where the outcome is dependent on chance and as such no skill is involved. The point of dispute is as to whether just because no skill is involved, whether the same would have to be treated as toys- a plaything for children meant only for their amusement, or whether the same have to be treated as games meriting classification under Heading 95.04.
47. 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. In my view, this plea of the appellant is not correct. While the Apex Court in the case of Pleasantime Products Vs. CCE Mumbai-I(Supra) has held that Scrabble, whether Junior Scrabble or Senior Scrabble, is a game classifiable under Heading 95.04, it has also upheld the classification of Snakes & Ladders under Heading 95.04, though on this point there is no discussion in the order, as appellant themselves had conceded its classification under Heading 95.04. As discussed above, the 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 Courts 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 for determining the classification of the products in question in the Central Excise Tariff. The products, in question, therefore would be correctly classifiable as board games under sub-heading 9504.90. Though the Apex Court in para-21 of its judgment in the case of Pleasantime Products Vs. CCE Mumbai-I (Supra) while discussing the classification of Scrabble, has observed that a game involves the elements of skill and chance and these elements are absent in a toy, this observation cannot be interpreted to mean that a board game involving only chance and not involving any skill or involving very little skill, will cease to be a game, as there can be games involving competitiveness and played according to rules, like certain card games, where either no skill is involved or very little skill is involved and outcome is decided mainly by the element of chanbce. The essential elements of a game are that:-
(a) it is played according to the rules, its outcome is not predetermined ;
(b) there is an element of competitiveness; and
(c) the outcome depends either on skill or on chance or on both skill as well as chance, and and just because the element of skill is very little or is absent, it will not cease to be a game, more so, when it terms of HSN explanatory notes to heading 95.04, the board games like Ludo, Snakes & Ladders etc. are covered by heading 95.04.
48. In view of the above, I hold that the four products, in question, are correctly classifiable as games under sub-heading 9504.90 of the Tariff.
(Order on points of difference pronounced on 4/4/14) Sd/-
(Rakesh Kumar) Member (Technical) gs MAJORITY ORDER
49. In view of the majority order, in Appeal Nos. E/620/2002 and E/722/2003, the impugned orders are modified insofar as the following items are classifiable as Toys under Heading 9503 of CETA, 1985:-
1. City of Games (Paris)
2. City of Games (London)
3. Games of States (USA)
4. Games of States (India)
5. Match & Move Memory
6. Mould & Paints
7. Game of Games
8. Go To The Heads of Class The other items, except as mentioned above, would be considered as Games classifiable under Heading 9504 of CETA, 1985 and the demand of duty along with interest is upheld and the penalties are set aside. The Honble Supreme Court directed that the demand of duty should be restricted for the normal period of limitation under Section 11A of the Central Excise Act, 1944, in Appeal No. E/302/2003 the penalty imposed on Shri S.K. Pathi is set aside and the appeal is allowed with consequential relief, if any.
(Pronounced in open court on 23/05/2014) Sd/- sd/-
(R. PERIASAMI) (P.K. DAS)
Technical Member Judicial Member
Rex
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