Case: M/S Pleasantime Products Etc Vs. Commr.Of Central Excise,Mumbai-1 Etc

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. 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 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. 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. 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. 22. Now, coming to the question of extended period of limitation, it is the case of the assessee that they bonafidely believed that "Scrabble" is a toy in the nature of a puzzle and, therefore, it was classifiable under sub-heading 9503.00 of the CETA. According to the assessee, the longer period of limitation was not invocable under the proviso to Section 11A(1) of the 1944 Act as the assessee had stated in all their annual declarations that they are manufacturing toys and puzzles classifiable under Heading 95.04 and sub-heading 9503.90 of the CETA; particularly, when in their declarations they had declared that they were manufacturing toys and puzzles which carried the brand name of their licensors M/s. J.W. Spears & Sons Ltd., U.K., and since "Scrabble" was a product of M/s. J.W. Spears & Sons Ltd., U.K., it cannot be said that they had deliberately suppressed the fact of manufacture of "Scrabble". We do not find merit in this submission. Firstly, as stated above, the case of the assessee was that they had annexed a list of items manufactured by them which included items falling under Headings 94.03 and 95.04 of the CETA. This has not been proved. The list is not there on record. In the circumstances, the authorities below were right in rejecting this contention of the assessee. Secondly, we find that in the declaration(s) even though the assessee had doubts about the excisability of the said item and even though the assessee had sought clarification as far back on 5th September, 1994; they did not mention the word "Scrabble" in the body of the declaration(s) filed with the Department. They did not mention the details of the game "Scrabble". Therefore, this conduct of the assessee clearly indicates that the assessee herein deliberately declared branded goods under sub-heading 9403.00 of the CETA to avoid any enquiry in the matter by the Department. For the above reasons, we are of the view that the Department was justified in invoking the proviso to Section 11A (1) of the 1944 Act.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]14. Hence, in our view, "Scrabble" will not fall in the category or class mentioned in sub-heading 9503.00, namely, "puzzles of all kinds"We do not find merit in this submission. Firstly, as stated above, the case of the assessee was that they had annexed a list of items manufactured by them which included items falling under Headings 94.03 and 95.04 of the CETA. This has not been proved. The list is not there on record. In the circumstances, the authorities below were right in rejecting this contention of the assessee. Secondly, we find that in the declaration(s) even though the assessee had doubts about the excisability of the said item and even though the assessee had sought clarification as far back on 5th September, 1994; they did not mention the word "Scrabble" in the body of the declaration(s) filed with the Department. They did not mention the details of the game "Scrabble". Therefore, this conduct of the assessee clearly indicates that the assessee herein deliberately declared branded goods under sub-heading 9403.00 of the CETA to avoid any enquiry in the matter by the Department. For the above reasons, we are of the view that the Department was justified in invoking the proviso to Section 11A (1) of the 1944 Act