TMI Blog2005 (2) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... on 11A(1) 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 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. - S.N. Variava, Dr. A.R. Lakshmanan and S.H. Kapadia, JJ. [Judgment per : S.H. Kapadia, J.]. - The short question which arises for determination in 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 Swings. 2.The assessee is engaged in the manufacture of toys. On 24th April 1987, a team of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ription shall be preferred to a heading having a more general description. For example, in the case of toys referred 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 . 10.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 determining the classification of an item. 11.The aforestated aids and assistance are more important than the names used in the trade or common parlance in the matter of correct classification. Classification of Play Table, Tables, Activity Desks and(A) Chairs : 12.The assessee has classified the above articles under Tariff Heading 95.03, whereas the revenue has classified the same under Tariff Headings 94.01 and 94.03, which read as follows : Heading No. Description of Goods Rate of Duty 94.01 Seat (other than those of heading No. 94.02) whether or not convertible into beds, and parts thereof. 20% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... They were smaller versions of tables and chairs used by adults and, therefore, rightly classified as furniture under Headings 94.01 and 94.03. He submitted that what was excluded from Chapter 94 was doll's furniture. In this connection, reliance was placed on Note (A)(12) 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. Therefore, according to the department, the aforestated articles were classifiable under Headings 94.01 and 94.03. 15.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 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-huma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upplied, that with which anything is furnished or 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 can be furnished. The term 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 . 18.According to Concise Oxford Dictionary, toy is an object for a child to play with. It is a model or a miniature of something. 19.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. 20.According to Oxford Classical Dictionary, a Doll's house furniture is a toy . 21.According to Random House Dictionary, a toy is an obj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lying 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 95.03. Classification of Play Pool :(C) 31.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 Heading 39.22, against which the department has not come in appeal. 32.We quote hereinbelow 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 heading Nos. 39.01 to 39.14. 95.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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. 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 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. 38.We do not find any merit in these arguments. Nothing prevented the department from calling upon the assessee over the years to produce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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