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

2. Assessee is a proprietary firm engaged inter alia in the business of manufacture and trade of toys, games and puzzles of various kinds falling under Chapter 95 of the First Schedule to the CETA. The goods are manufactured by the assessee either under their own brand name of "United Toys" or under different brand names. One of the items manufactured by the assessee is "Scrabble" which is a registered brand name owned by M/s. J.W. Spears & Sons Ltd., U.K. According to the assessee, "Scrabble" is a puzzle or in the alternative it is an educational toy falling under sub-heading 9503.00 of the CETA. Assessee holds a licence from M/s. J.W. Spears & Sons Ltd., U.K., to use the brand name(s) "Scrabble" and to manufacture the product in India. Assessee pays royalty to M/s. J.W. Spears & Sons Ltd., U.K., on sale of "Scrabble" in India. In these civil appeals we are concerned with the period March 1996 to June 2001.  3. On 12.4.96, the assessee filed a declaration under Notification No.13/92-CE (NT) dated 14.5.92 informing the Department that the assessee manufactured toys and puzzles falling under sub-heading 9503.00 of the CETA which were fully exempt from payment of excise duty as per Notification No.81/90-CE amended by Notification No.56/94-CE. In the declarations for the relevant years in question, according to assessee, the Department was informed that they were manufacturing items classifiable under sub-heading 9503.00 as well as under Heading 95.04 either on their own account or by using the brand name of others. According to the assessee, along with the declaration(s), a list of toys manufactured by it, classifiable under sub-heading 9503.00, was also furnished. In the list the assessee stated that "Scrabble" was classifiable under sub-heading 9503.00. According to the assessee, subsequent to the filing of annual declarations, visits were made by the jurisdictional Central Excise Authorities and samples were collected by the Department.  4. It may be mentioned that in this batch of civil appeals we are concerned with the period March 1996 to June 2001 covered by two show cause notices dated 23.3.2001 and 18.1.2002. On 23rd March, 2001, assessee was served with a show cause notice (SCN) issued by the Commissioner alleging that "Scrabble" was not a puzzle, it was not a toy but a game and, therefore, it could not be classified under sub-heading 9503.00; that, all games which contain boards and pieces were classifiable under sub-heading 9504.90 and since "Scrabble" has board(s) and pieces it was classifiable under sub-heading 9504.90 of the CETA. The SCN also invoked longer period of limitation under Section 11A(1) of the Central Excise Act, 1944 ("1944 Act", for short) alleging that the declarations filed by the assessee failed to mention that the assessee was manufacturing board games and that they had deliberately suppressed the process of manufacturing "Scrabble". On these allegations, the Commissioner made the demand of Rs.22,72,233 (by first SCN) and Rs.71,690 (by second SCN) on the clearances of "Scrabble" made by the assessee during the period March 1996 to June 2001 charging excise duty for a longer period of limitation. In reply to SCN, assessee submitted that the longer period of limitation could not be invoked under Section 11A(1) of the 1944 Act as the assessee had stated in their declarations that they were manufacturing toys and puzzles classifiable under sub-heading 9503.00 as well as under sub-heading 9504.90 and they had specifically stated in the declarations that they were manufacturing toys and puzzles which also bear the brand name of M/s. J.W. Spears & Sons Ltd., U.K., and since "Scrabble" was a product of M/s. J.W. Spears & Sons Ltd., U.K., it could not be said that they had deliberately suppressed the fact that they manufactured "Scrabble". On merits, the assessee replied to the SCN that even if "Scrabble" would be treated as a table game still it would be covered by the genus "puzzles of all kinds" in sub-heading 9503.00. On the basis of definitions under various dictionaries, internet search on the subject etc., the assessee submitted that in any event "Scrabble" was an educational toy. Assessee also relied upon various dictionary meanings to show that "Scrabble" was a puzzle and, therefore, classifiable under sub-heading 9503.00 of the CETA. Assessee also furnished affidavits of purchasers of "Scrabble" who deposed that "Scrabble" was an educational toy used for imparting education to children and is treated as a puzzle by adults.  5. Vide orders dated 30.1.02 and 30.9.03, the Commissioner (A) held that "Scrabble" was a board game classifiable under sub-heading 9504.90 of the CETA and liable for levy of central excise duty thereunder. The Commissioner further held that the assessee had deliberately suppressed the fact of manufacturing and clearance of dutiable brand goods "Scrabble" under sub-heading 9504.90 and, therefore, the longer period of limitation was invocable.  6. Aggrieved by the Orders of the Commissioner (A), Assessee went in appeal to CESTAT bearing Nos.E/1554/02, E/1553/02 and E/32/04. All three appeals filed by the assessee were collectively heard by CESTAT and disposed of by a common Final Order No.A/346-348/08/C-I/EB dated 21.3.08. By the said order it has been held that "Scrabble" was neither an educational toy nor a puzzle. In other words, CESTAT has confirmed the order of the lower authorities, hence these civil appeals filed by the Assessee.

Reasoning:
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