Full Judgment
2. Shri Joseph Vellapally, Sr. Advocate appearing for the appellants submits that the goods manufactured by the appellants are "other toys or puzzles of all kind" under Chapter sub-heading 9503.00 or under Chapter sub-heading 9506.00 as "other Sports". He submitted that the appellants had submitted two affidavits of the dealer stating that the product manufactured by the appellants are not Parlour games but they can be categories as Toys or Games or Puzzles, that similar view was expressed in the other affidavit stating that the five items in dispute are not Parlour games but are in the category of board games or family games and that they are sports goods and are classifiable as sports goods. Ld. Counsel also submitted that the five items in dispute are family games and not Parlour Games which are necessarily mounted tables; that the expression, "Table or Parlour Games" has been listed in the Alphabetical index, Vol. (2) or HSN. Ld. Counsel submitted that Table or Parlour Games can be classified under sub-heading 9504 only in respect of equipments specialised tables and not to consumer games meant for family and children. He submitted that if the game is not a part of the furniture or table, it shall not fall under sub-heading 9504. Referring to a copy of the catalogue, Ld. Sr. Counsel submitted that these five items are shown as family games at page Nos. 20 and 47; that the manufacturers do not treat them as Table or Parlour Games; that the dealers do not treat item as Parlour or Table Games and, therefore, by common parlance tests the goods cannot be called table for (sic) [or] Parlour Games but should be treated as puzzles of all kinds and, therefore, should be classified under Chapter sub-heading 9503.03 or 9506.00. Ld. Counsel submitted that all the five items in question are indoor games. He submitted that in case they are not treated as family games, they should by treated as sports goods. He submitted that insofar as chess is concerned this item is well known as sports goods; that these items are all games played in indoor sports; that all these games are played by families as well as institutions in competitive sports. Referring to the Dictionary meaning Ld. Counsel submitted that a sport means "An active pastime; diversion; recreation", that the Webster's Third New International Dictionary describes "Sports" as Something that is a source of pleasant diversion; a pleasing or amusing pastime or activity; Recreation".
Ld. Counsel submitted that these goods are Sports Goods and that the only subheading where "Sports" is mentioned is sub-heading 9506 of the Central Excise Tariff Act, 1985. It was submitted by the Ld. Counsel that a close reading of sub-heading 9506.00 reveals that it covers not only the articles and equipments for general physical exercise etc. it also covers the articles and equipment for other indoor and outdoor games and that the inclusion of the words, "other sports" support this view.
3. Ld. Counsel submitted that if the classification of these items is held to be under 9503.00 or 9506.00 then the appellants will be entitled to the benefit of Notification No. 81/90 dt.20.3.90. In support of various contentions Ld. Counsel cited and relied upon the decisions of this Tribunal in the case of ESBEE Playing Card Co. v.CCE, Bombay and in the case of Shiv Packaging Corpn. reported in 1998(103)ELT 93. He submitted that in view of the above submissions the appeal may be allowed with consequential relief.
4. Shri. A.K. Prasad, Ld. DR appearing for the respondent Commissioner submits that the items manufactured by the appellants are neither covered by Chapter Heading 95.03 nor by Chapter Heading 95.06 inasmuch as the items are neither other toys nor are the puzzles of all kinds.
He submits that insofar as other toys and puzzles of all kinds are concerned, none of the items in dispute are other toys because the term toys had a different connotation and the items do not conform to those connotation nor are they puzzles of all kinds. He submitted that the items in dispute do not qualify for classification under Chapter Heading 95.06 as other 'Sports'. He submits that sports invariably involved physical activity. He submits that reading down the description of the goods under Chapter Heading 95.06, it is very clear that only such items which involved physical activity and are used as sports or games, articles will be classifiable under Chapter 95.06. He submitted that the items in question appropriately fall under Chapter Heading 95.04 inasmuch that they qualify for classification as articles for funfair, table or parlour games, etc. He reiterates the findings of the authorities below.
5. Heard the rival submissions. Here the dispute is on two counts. The first is the classification of the goods and the second is admissibility of the benefit of Notification No. 81/90 dt. 20.3.90. We note that the claim of the assessee is that his goods are classifiable either under Chapter sub-heading 95.03 as other toys and puzzles of all kinds or under Chapter Heading 95.06 as other 'sports' whereas the Department holds that the items are classifiable under Chapter heading 95.04 as Table and Parlour Games. Case law was cited before us. In the case of Kemp & Co. Ltd. v. CCE , this Tribunal held that Saucer gun, bulls eye and shoot out gun are products used by children as toys and cannot be considered as sports goods. In that case it was also observed that Heading 95.06 refers to the equipment for gymnastics, athletics, table-tennis etc. and that by the settled principles of interpretation, the goods akin to those specifically described only are to be covered by the expression 'other sports'. In the instant case we find that none of the items are akin to the goods described against Chapter Heading 95.06. In the case of ESBEE Playing Card Co. v. CCE , the Tribunal observed that chapter heading does not make any distinction between the 'sports' and 'games'; that Chapter notes do not provide any insight into such distinction; that dictionary meaning indicates that these terms are used inter-changeably (sports and games); that therefore going by the plain description it could appear that all the goods falling under sub-heading 95.04 would qualify this description.
Affidavits placed on record shows that such goods are sold in sports goods shop; that trade parlance is not required when guidance for classification is inferred from wording of the tariff itself. This decision though followed in the case of Shiv Packaging Corpn. reported in 1998(103) ELT 93 only helps in classification of the goods and does not lead us to conclude that all the goods falling under Chapter Heading 95.04 are sports goods inasmuch as sports goods invariably involved physical activity.Sayee Industries, Madurai v. CCE, Madurai , this Tribunal observed that rubber play balls are not toys but are sports goods; that 'sports' means a game specially one involving bodily exercise; that games played with rubber play balls would undoubtedly involve bodily exercise. This finding of the Tribunal supports the view that for being classified as 'sports goods' generally some bodily or physically exercise is a necessity.
7. We note that the present Central Excise Tariff is alligned to HSN.In the case of CCE, Shillong v. Wood Craft Products Ltd. We are of the view that the Tribunal as well as the High Court fell into the error of overlooking the fact that the structure of the Central Excise Tariff is based on the internationally accepted nomenclature found in the HSN, and therefore, any dispute relating to tariff classification must, as far as possible, be resolved with reference to the nomenclature indicated by the HSN unless there be an express different intention indicated by the Central Excise Tariff Act, 1985 itself.
Since the Central Excise Tariff Act, 1985 is enacted on the basis and pattern of the HSN, the same expression used in the Act must, as far as practicable, be construed to have the meaning which is expressly given to it in the HSN when there is no indication in the Central Excise Tariff of a different intention.
8. We note that in the Explanatory Notes under Chapter Heading 95.04 which is pari-materia to Chapter Heading 95.04 of the Tariff while describing the items in Clause 12.
Boards and pieces for games of chess, draughts, dominoes, mabjong etc. are covered.
Thus, chess boards and pieces are specifically covered and enumerated under Chapter Notes and Chapter Heading 95.04 in the HSN and since HSN cannot be ignored, therefore, chess board and pieces will be classifiable under Chapter Heading 95.04. Insofar as Chutes & Leaders are concerned, they are not sports goods and, therefore, they cannot be treated as sports goods but may be classified under Chapter Heading 95.04. So also is the case that Games of Life, Checkers + 5 and Chinese Checkers, these are not sports goods as they do not require any bodily exercise in their use and, therefore, will be classifiable under Chapter Heading 95.04.
9. Insofar as admissibility of the exemption under Notification No.81/90 is concerned, we find that this notification for goods classifiable under Chapter Heading 95.04 stipulates a rate of duty of 15% except for playing cards, electronic machine for games of skills including electronic machines for T.V. games and Video games. Since the five items in dispute do not fall in any of these categories, therefore, the benefit of Notification No. 81/90 will not be available to the appellants. In the circumstances, we do not find any reason to interfere with the impugned order, therefore, the impugned order is upheld and the appeal is rejected.