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.