Full Judgment Text
THE COMMISSIONER OF CENTRAL EXCISE, GOA & ANR
v.
M/S. FUNSKOOL (INDIA) LTD. & ANR.
IA Nos. 8-10 of 2009
IN
(Civil Appeal Nos. 3460-3462 of 2004)
JANUARY 25, 2010
[S.H. KAPADIA AND AFTAB ALAM, JJ.]
2010 (2) SCR 68
The following Order of the Court was delivered
O R D E R
1. In view of factual errors committed through oversight in stating
particulars of items in dispute (though there is no mistake in recording
findings/ conclusion), we recall our order dated 12th November, 2009 in Civil
Appeal Nos. 3460-3462 of 2004 in the case of Commissioner of Central
Excise, Goa & Anr. v. M/s. Funskool (India) Ltd. & Anr. (“FIL” for short).
Accordingly, IA Nos. 8 – 10 of 2009 in Civil Appeal Nos. 3460-3462 of
2004 stand allowed.
2. By consent, Civil Appeal Nos. 3460-3462 of 2004 are taken up for
hearing and disposed of.
3. By our judgment dated 12th November, 2009, in the case of M/s.
Pleasantime Products and Anr. v. Commissioner of Central Excise, Mumbai –
I [Civil Appeal Nos. 4309-4311 of 2008], this Court held that the product
“Scrabble/ Upwords” is classifiable under CSH 9504.90 of the First Schedule
to the Central Excise and Tariff Act, 1985. The said CSH 9504.90 comes
under CH 95.04 which refers to “Articles for funfair, table or parlour games,
including pintables, billiards, special tables for casino games and automatic
bowling alley equipment”. In the afore-stated judgment, we have taken the
view that the product “Scabble/ Upwords” falls under CH 95.04 and we have
rejected the argument of the assessee that the said product fell under CSH
9503.00 which refers to the words “other toys; reduced-size models; puzzles
of all kinds”. The decision in the case of M/s. Pleasantime Products (supra)
was given on 12th November, 2009. On that day, the connected matter was
M/s. FIL (supra).
4.The appeal filed by the Department in the case of M/s. FIL (supra) dealt
with 34 items (and not with 12 items as mentioned in our order dated 12th
November, 2009, which is now recalled). We may state that three out of 34
items dealt with Scrabble/ Upwords, Monopoly, Snake and Ladder. Applying
our judgment in the case of M/s. Pleasantime Products (supra), we hold that
the said three items, namely, Snake and Ladder, Monopoly and Scrabble/
Upwords stand classifiable under CH 95.04 of Central Excise and Tariff Act,
1985.
5. 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 the case of M/s. Pleasantime Products
(supra).
6. Now, coming to the question of limitation, we are of the view that, on
facts and circumstances of this case, in respect of first show-cause notice
dated 23rd November, 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 second show-cause notice dated 1st May, 2001, the said notice is
within limitation and, therefore, the Department would be at liberty to proceed
in accordance with law.
7. Before concluding, we may clarify that we have recalled our order
dated 12th November, 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 re-dictate the said order
for the sake of clarity.
8. Accordingly, the Civil Appeals filed by the Department are allowed with no
order as to costs.