M/S. O.K. Play (india) Ltd. v. Commissioner of Central Excise, Delhi-iii, Gurgaon
KAPADIA, J. The short question which arises for dt!!ermination in B
these Civil Appeals filed by the assessee and by the department, respectively,
under Section 35L(b) of the Central Excise Act, 1944, is - whether the assessee
was right in classifying the following articles under Chapter Heading 95.03
and clearing the same without payment of duty. The said articles are Activity
Desks and Chairs, Fun Fliers, Play Table, Play Pool, Rockers, Slides and C
Swings.
The assessee is engaged in the manufacture of toys. On 24th April
1987, a team of officers from Anti Evasion Branch of the Delhi
Commissionerate visited the factory premises of the assessee situate at
Gurgaon, Haryana, when they found that the assessee was manufacturing the D
above articles with the help of machines and which were being cleared without
payment of duty.
On 4th November, 1997, a show-cause notice was issued to the assessee
alleging mis-declaration in the classification list by prefixing and suffixing
each of the above items with the words "baby" and "toys" respectively. E
Consequently, "Activity Desks and Chairs" were described as "Baby Chair
Toy" and "Baby Desk Toy"; Rockers were described as "Baby Rocker Toy";
Slides were described as "Baby Slide Toy". According to the department, the
said prefix and suffix was inserted to each of the above articles to mislead
the department into believing that each article was a toy. Hence, the department
sought to recover duty for the period from 1.4.1992 to 28.2.1997 by invoking F
the proviso to section l IA(l) of the Central Excise Act, 1944 (hereinafter
referred to for the sake of brevity as "the 1944 Act"). According to the
department, the said items were classifiable under Chapter Headings 95.06,
94.01, 94.03 and 39.22 and, therefore, chargeable to duty.
The basic question which arises for determination in these Civil Appeals
is - whether the aforestated seven articles are "toys" classifiable under Tariff
Heading 95.03 as claimed by the assessee?
For the sake of clarity, since classification of seven articles is in issue,
we have divided this judgment into three categories. H
A Before dealing with the issue of classification, certain points are required
to be clarified.
In the case of A. Nagaraju Brothers v. State of Andhra Pradesh, reported
in (I 994) 72 EL T 80 I, it has been held by this Court that no one single
universal test can be applied for correct classification. There cannot be a
B static parameter for correct classification.
Further, the scheme of the Central Excise Tariff is based on Harmonized
System of Nomenclature (for short "HSN") and the explanatory notes thereto. ,, ,
Therefore, HSN along with the explanatory notes provide a safe gaide for
C interpretation of an Entry.
Further, equal importance is required to be given to the Rules of
Interpretation of the Excise Tariff. Under rule 3(a), it is provided that the
heading which provides a specific description shall be preferred to a hea<ling
having a more general description. For example, in the case of"toys" referred
D to in the HSN Heading and the Tariff Heading, the description refers to
reduced size model of an Article used by adults. This test helps us to understand
the difference between "toys" and "furniture".
Lastly, it is important to bear in mind that functional utility, design,
shape and predominant usage have also got to be taken into account while
E determining the classification of an item.
The aforestated aids and assistance are more important than the na•.nes
used in the trade or common parlance in the matter of correct classification.
(A) CLASSIFICATION OF PLAY TABLE, TABLES, ACTIVITY DESKS
F AND CHAIRS.
The assessee has classified the above articles under Tariff Heading
95.03, whereas the revenue has classified the same under Tariff Headings
94.0 I and 94.03, which read as follows :
Heading No.
94.01
94.03
95.03
Description of Goods Rate of Duty
Seats (other than those of heading
No. 94.02), whether or not convertible
into beds, and parts thereof.
Other furniture and parts thereof.
Other toys; reduced-size ("scale")
20%
20%
15%
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OK PLAY (INDIA) LTD, v, C.C.E [KAPADIA .. L] 1075
models and similar recreational
models, working or not; puzzles
of all kinds.
Mr. S. Ganesh, learned senior counsel appearing on behalf of the assessee
submitted that "Activity Desks and Chairs" were specifically designed for
amusement of small children. He submitted that the said Desk has a slate B
with a removable desk top with twin wells for crayons, toys, books etc. The
children can even draw or learn the basics of writing on this table. Similarly,
the play table is designed for group play. These articles were aids for the play
of small children. They were bought and sold in the market as toys. They
were exclusively available in toy shops and not in furniture shops. It was
submitted that the usage and commercial parlance show that the articles were C
toys classifiable under Tariff Heading 95.03 as toys. In this connection, reliance
was placed on the Certificates obtained from Toys Association of India and
from Sports Goods Export Promotion Council, letters from various distributors
and catalogues of various international manufacturers and rotational moulding
association. It was submitted that the department has not adduced any evidence D
to show that in commercial parlance, these articles are not known as toys.
Reference was also made to Note-I under Chapter 94 to show that the said
chapter did not cover the toy furniture. According to the assessee, toy furniture
has not to be understood as furniture under Chapter 94 but should be excluded
therefrom as a toy furniture was specifically designed for play and amusement
of children. It was also not synonymous with doll furniture. These articles, E
according to the assessee, were aids for play and, therefore, classifiable under
Heading 95.03. Reliance was also placed on the product catalogue to show
the shape, colour and size of these articles indicating that they were toys and
not furniture.
Per contra, Mr. Rajiv Dutta, learned senior counsel appearing on behalf F
of the department submitted that the mere fact that an article was meant for
exclusive use of children would not place that article in the category of toys.
Baby chairs, desks and tables were used predominantly by children to sit on
and write on. They were smaller versions of tables and chairs used by adults
and, therefore, rightly classified as furniture under Headings 94.01 and 94.03. G
He submitted that what was excluded from Chapter 94 was doll's furniture.
In this connection, reliance was placed on Note (A)(l2) of HSN Heading
95.03 which refers to Dolls' houses and furniture including bedding. It is this
type of furniture that can be treated as toy furniture which is excluded from
Chapter 94. Reliance was also placed on the note to HSN Heading 94.01
which refers to different types of chairs like infant's chair, children's seat etc. H
1076 SUPREME COURT REPORTS [2005) l S.C.R.
A Therefore, according to the department, the aforestated articles were classifiable
under Headings 94.01 and 94.03.
We are inclined to agree with the department. The mere fact that an
article is meant for exclusive use of children would not place it in the category
of toys. The word "toys" is not defined. However, Tariff Heading 95.03
B describes "toys" as reduced-size models and similar recreational. This tariff
heading is identical to HSN Heading 95.03 which also refers to "toys" as
reduced-size models. Both the headings describe "toys" as representing animals
or non-human objects. They refer to toy musical instruments, apparatus,
appliances etc. Heading 95.03 is a residuary item. It covers Doll houses and
C furniture. Under the explanatory notes to HSN Heading 95.03, reference is
made to toys like sewing machines, musical instruments etc. distinguishable
by their size and limited capacity from real sewing machine, musical instrument
etc. Similarly, under the explanatory Note (B) to HSN Heading 95.03, reduced
size model includes models of aircraft, trains etc. which are reproductions of
Articles. It is important to note that Section XX of the Central Excise Tariff
D Act, 1985 (hereinafter referred to for the sake of brevity as "the 1985 Act")
covers Chapters Nos. 94, 95 and 96 under the caption "Miscellaneous
Manufactured Articles". Chapter 94 deals with Furniture. Chapter Note l(k)
excludes toy furniture or toy lamps from Chapter 94. Chapter Note 2 refers
to the articles of furniture, falling in Chapter 94, subject to the condition that
E they are for placing on the floor or ground. Tariff Heading 94.01 refers to
Seats. Further, the HSN Heading 94.03, which is similar to Tariff Heading
94.03, refers to any movable article which can be placed on the floor and
mainly used in dwelling house, schools, cafes etc. as furniture. It covers
desks, chairs etc. Basically, toys, as indicated by HSN Heading, are miniature
reproduction of the articles used by the adults, like, furniture, musical
F instruments etc.
In the light of what is stated above, we are of the view that play tables,
activity desk etc., enumerated above, are more akin to furniture under Headings
94.01 and 94.03 than toys under Heading 95.03.
G In Corpus Juris Secundum. Volume 37 at page 1412, the word
"furniture" is defined as under :
"A comprehensive term of very broad meaning and general
application whose meaning changes so as to take the colour of, or be
in accord with, the subject to which it is applied. It has been variously
defined as meaning anything which furnishes or equips: a supply of
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O.K. PLAY (INDIA) LTD. v. C.C.E [KAPADIA. J.] 1077
necessary, convenient or ornamental articles, for any business or A
residence, or with which a residence is supplied, equipment, outfit,
supplies, that which fits or equips for use or action, that which fits or
supplies a house for use or which furnishes or is added to the interior
of a house for use or convenience; that with which anything is fitted,
out, furnished, or supplied, that with which anything is furnished or B
supplied for use, those movables required for use or ornament in a
dwelling, a place of business or of assembly; those readily movable
articles which would be serviceable generally as household furniture
without any special reference to a particular building. It is not confined
in its meaning to such things as are necessaries to a family, but
embraces about everything with which a house or anything else is or C
can be furnished. The tenn ordinarily relates to movables chattel;
personal chattels in the use of a family and applies to all personal
chattels which may contribute to the use or. convenience of the house
holder or the ornament "of the house". "Furniture" is not generally
included by the term "fittings"."
According to Concise Oxford Dictionary, "toy" is an object for a child
to play with. It is a model or a miniature of something.
According to Encyclopedia Americana, a "toy" is a trifle. It is a thing
of little or no value. It is a play thing. It has no practical use.
According to Oxford Classical Dictionary, a Doll's house furniture is
a "toy".
According to Random House Dictionary, a "toy" is an object. It is a
small representation of something familiar to the child such as an animal an
object, person etc. It is something diminutive. F
According to Collins Cobuild Dictionary, a "toy" is an object that the
children play with, for example, a doll or a model car or an air-craft.
In the circumstances, we hold that play table, activity desks and chairs
constitute "furniture" in terms of Tariff Heading 94.01/94.03. G
(B) CLASSIFICATION OF "SWINGS, SLIDES, FUN FLIERS AND
ROCKERS".
The next question which arises for determination is whether the above
items are "toys" under Tariff Heading 95.03, as contended by the assessee; H
A or whether they are equipments for general physical exercise, gymnastics and
athletics, as submitted on behalf of the depa1tment.
To decide the above controversy, we quote herein below Tariff Headings
95.03 and 95.06 :
B Heading No. Description of Goods Rate of Duty
95.03
95.06
Other toys; reduced-size ("scale")
models and similar recreational
models, working or not; puzzles
of all kinds.
Articles and equipment for general
physical exercise, gymnastics,
athletics, other sports (including
table-tennis) or out-door games,
not specified or included elsewhere
in this Chapter.
15%
15%
As stated above, Tariff Heading and HSN Heading 95.03 describe "toys"
as reduced-size models. Toys are miniature replica of articles used by adults.
Tariff Heading 95.06 is similar to HSN Heading 95.06. According to
explanatory notes to HSN Heading 95.06, equipments for exercise etc. are
E parallel bars, rings, trapeze etc. The said note excludes toys under Heading
95.03. However, it covers swings, slides etc. used in the playground. Therefore,
on a bare reading of these explanatory notes, we find that the articles in
question are not equipments for general physical exercise. They are toys
under Tariff Heading 95.03.
F In Black's Law Dictionary, the word "equipment" is defined to mean
an article or implement used for a specific purpose or activity.
In Random House Dictionary, an "equipment" is defined as an article
used for gaining skill.
G According to Collins Cobuild Dictionary, "equipment" is a thing which
is used for a particular purpose.
Applying the above tests, we hold that the purpose of reduced size
models of slides, swings etc. is amusement and not physical exercise. The
Tribunal was, therefore, right in classifying these items under Tariff Heading
H 95.03.
O.K. PLAY (INDIA) LTD. v. C.C.E [KAPADIA . .J.] 1079
(C) CLASSIFICATION OF PLAY POOL
In this case the Adjudicating Authority had classified "Play Pool" as
"Baths" under Tariff Heading 39.22, as against the claim of the assessee that
"Play Pool" was a toy under Tariff Heading 95.03. The Tribunal, however,
held that "Play Pool" was neither a toy under Heading 95.03 nor did it fall
in category of "Baths" under Heading 39.22. The Tribunal classified it under B
Heading 39.22, against which the department has not come in appeal.
We quote herein below .the aforestated Tariff Headings 39.22, 39.26 and
95.03 :
Heading No. Description of Goods
39.22 Baths, shower-baths, wash-basins, bidets, lavatory pans, seats
and covers, flushing cisterns and similar sanitary-ware, of
plastics
39.26 Other articles of plastics and articles of other materials of D
heading Nos. 39.01 to 39. 14
95.03 Other toys; reduced-size ("scale") models and similar
recreational models, working or not; puzzles of all kinds.
In the present case the evidence on record indicates that the "Play E
Pool" has a diameter of 5 ft.; it has a depth of 2.5 ft.; it has steps to go down;
it has a seat and a slide. Its water carrying capacity is I 000 to 1500 litres.
During summer, children can take a cool dip in it. During winter, it can be
used as a play-pen. Adults can also sit in it.
In view of the above specifications, "Play Pool" cannot be said to be F
a toy under Tariff Heading 95.03. Further, in the explanatory notes to HSN
Heading 39.22, it is clarified that "Baths" in the said heading would cover
baby baths and camping toilets. Therefore, in our view, the department was
right in classifying "Play Pool" as "Baths" under Heading 39.22.
We would have remanded the matter to the Tribunal, if there was any
ambiguity about the classification of"Play Pool" under Tariff Heading 39.22.
However, we are not inclined to remit the matter as the item stands fully
covered by the explanatory notes to HSN Heading 39.22. Moreover, at the
stage of show-cause, full opportunity was given to the assessee to disprove
that it was not falling under Heading 39.22. On the facts and circumstances H
A of this case and without going into the question as to what course the
department should follow when the Tribunal classifies the item in a different
category, we hold that the Adjudicating Authority was right in classifying
"Play Pool" under Tariff Heading 39.22.
On the question of limitation, it may be stated that one of the show-
B cause notices is dated 4.11.1997 claiming duty from the assessee for the
period commencing from 1992-93 to 28.2.1997. By the impugned judgment,
the Tribunal came to the conclusion that the assessee had filed its classification
list giving exact description of the goods; that all the relevant features of the
products manufactured were available with the department; that it was for the
C officers of the department to conduct further examination to see whether the
classification given by the assessee was correct or not and, therefore, the
department was not entitled to invoke larger period of limitation. Consequently,
the Tribunal directed the department to drop the proceedings pursuant to
show-cause notice dated 4.11.1997.
D Being aggrieved, the department has come to this Court by way of
Civil Appeal Nos. 6776-6779 of 2004. We do not find any infirmity in the
decision of the Tribunal. The classification list was filed as far back as on
22nd October, 1992. Under the said list, the goods were declared as "Baby
Slide Toy", "Baby Chair Toy", "Baby Rocker Toy" etc. The said list was
approved without enquiry by the department on the description of the product.
E The department did not call for the product catalogue during the aforestated
period till February, 1997. According to the impugned show-cause notice
dated 4.11.1997, the product catalogue described the above items as "Rockers,
Slides, Swings" and not as "Baby Rocker Toy, Baby Slide Toy" etc. According
to the department, on reading of the product catalogue with the classification
p list, it becomes clear that the word "Baby" has been deliberately prefixed and
the word "toy" has been wilfully suffixed to the "Rockers, Slides, Swings"
etc. in order to mislead the department into believing that the said products
were toys.
We do not find any merit in these arguments. Nothing prevented the
G department from calling upon the assessee over the years to produce their
catalogues. The classification lists were duly approved by the department
from time to time. All the facts were known to the department, whose officers
had visited the factory of the assessee on at least 12 occasions. In the
circumstances, we do not find any infirmity in the reasoning given by the
H Tribunal in coming to the conclusion that there was no wilful suppression on
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O.K.PLAY(INDIA)LTD. v.C.C.E [KAPADIA,.1.) 1081
the part of the assessee enabling the department to invoke the extended A
period of limitation under the proviso to section I IA(I) of the 1944 Act.
. However, we may clarify that the show-cause notices dated 24.6.1997,
27.5.1998, 15.10.1998, 31.3.1998 and 30.9.1999 are in time as held by the
Tribunal.
Subject to what is stated hereinabove regarding classification of "Play B
Pool" under Tariff Heading 39.22, we do not find any infirmity in the
impugned judgment of the Tribunal. Hence, the Civil Appeals filed by the
assessee and the cross-appeals filed by the department are dismissed. However,
in the facts and circumstances of this case, there will be no order as to costs.
N.J. Appeals dismissed. C