THE COMMISSIONER OF CENTRAL EXCISE, GOA & ANR.versusM/S. FUNSKOOL (INDIA) LTD. & ANR.

                        [2010] 2 S.C.R. 68


A    THE COMMISSIONER OF CENTRAL EXCISE, GOA &
                       ANR.   .
                                 v.
              M/S. FUNSKOOL (INDIA) LTD. & ANR.
                       IA Nos. 8-1 O of 2009
B                                IN
              (Civil Appeal Nos. 3460-3462 of 2004)

                        JANUARY 25, 2010

             [S.H. KAPADIA AND AFTAB ALAM, JJ.]
c
        Central Excise and tariff act, 1985:

       First Schedule - Chapter 95 - Heading 95. 04 - Items
   'Snake and Ladder', 'Monopoly' and 'Scrabble/Upwards' -
  Classification of- Order of Supreme Court dated 12.11.2009
0
  - Clarification of - The appeal filed by the Department dealt
  with 34 items (and not with 12 items as mentioned in the order
  dated 12.11.2009) - It is clarified that 3 out of 34 items dealt
  with 'Scrabble'fUpward: 'Monopoly' and 'Snake and Ladder'
E - Applying the judgment in Mis Pleasantime Products*, the·
  said three items, namely, 'Snake and Ladder', 'Monopoly' and
  'Scrabble/Upwards' stand classifiable under Ch. 95.04 - The
  matter is remitted to the Tribunal 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 Tribunal
F needs to apply the tests enunciated in the judgment in the
  case of Mis Pleasantime Products - Order - Clarification of
  - Central Excise Act, 1944 - s. 11-A.

      *Mis. Pleasantime Products & Anr. v. Commissioner of
G Central Excise, Mumbai-I [2009] 15 SCR 851 - relied on.
        Central Excise Act, 1944:

        ss. 11-A - Show cause notices .:... Limitation - HELD: On

H                               68
 THE COMMISSIONER OF CENTRAL EXCISE, GOA & 69
    ANR v. MIS. FUNSKOOI:. (INDIA) LTD. & ANR.

 the facts and in the circumstances of the case, in respect of A
 show-cause notice dated 23.11.2001, 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 show-
 cause notice dated 1.5.2001, the said notice is within limitation B
 and, therefore, the Department would be at liberty to proceed
 in accordance with law - Central Excise and Tariff Act, 1985.

                       Case Law Reference:
     [2009] 15 SCR 851           relied on               para 3     C

     CIVIL APPELLATE JURISDICTION: IA Nos. 8-10 of 2009

                                  IN

               Civil Appeal Nos. 3460-3462 of 2004.                 o
    From the Judgment & Order dated 23.1.2004 of the
Custom, Excise and Service Tax Appellate Tribunal South Zonal
Bench at Chennai in Final Order Nos. 103 to 1QS of 2004.

    H.P. Raval, ASG, T.V. Ratnam, D. Mohta, B. Krishna              E
Prasad for the Appellants.

     M. Chandrasekharan/ K.R. Nambiar for the Respondents.

     The following Order of the Court was delivered
                                                                    F
                             ORDER

     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     G
dated 12th November, 2009 in Civil Appeal Nos. 3460-3462
of 2004 in the case of Co_mmissioner 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.
                                                                    H
    70      SUPREME COURT REPORTS                  [2010] 2 S.C.R.


A   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
B 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/ Upwards"
  is classifiable under CSH 9504.90 of the First Schedule to the
  Central Excise and Tariff Act, 1985. The said CSH 9504.90
C 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/ Upwards" falls under CH 95.04 and we have
D 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 Mis. Pleasantime Products (supra) was given on 12th
  November, 2009. On that day, the connected matter was Mis.
E FIL (supra).

         4. The appeal filed by the Department in the case of Mis.
    FIL (supra) dealt with 34 items (and not with 12 items as
    mentioned in our order dated 12th November, 2009, which is
F 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 Mis. 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,
G 1985.

         5. Subject to the question of limitation, we have discussed
    hereinaf~er, we remit the case to the Tribunal with the request
  to examine as to whether each of the remaining 31 items would
H stand covered by CSH 9504.90 or by CSH 9503.00. For that
 THE COMMISSIONER OF CENTRAL EXCISE, GOA                        71
  & ANR v. M/S. FUNSKOOL (INDIA) LTD. & ANR.
purpose, the Tribunal needs to apply the tests which we have          A
enunciated in our judgment in the case of Mis. 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
                                                                      8
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       C
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            D
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      E
are allowed with no order as to costs.

R.P.                                           Appeals allowed.