KAPADIA, J. - (1.) 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 officers from Anti Evasion Branch of the Delhi Commissionerate visited the factory premises of the assessee situate at Gurgaon, Haryana, when they found that the assessee was manufacturing the above articles with the help of machines and which were being cleared without payment of duty. On 4th November, 1997, a show-cause notice was issued to the assessee alleging mis-declaration in the classification list by prefixing and suffixing each of the above items with the words "baby" and "toys" respectively. Consequently, "activity desks and chairs" were described as "baby chair toy" and "baby desk toy"; rockers were described as "baby rocker toy"; slides were described as "baby slide toy". According to the department, the said prefix and suffix was inserted to each of the above articles to mislead the department into believing that each article was a toy. Hence, the department sought to recover duty for the period from 1.4.1992 to 28.2.1997 by invoking the proviso to section 11A(1) of the Central Excise Act, 1944 (hereinafter referred to for the sake of brevity as "the 1944 Act"). According to the department, the said items were classifiable under Chapter Headings 95.06, 94.01,94.03 and 39.22 and, therefore, chargeable to duty. The basic question which arises for determination in these civil appeals is whether the aforestated seven articles are "toys" classifiable under Tariff Heading 95.03 as claimed by the assessee?
(3.) FOR the sake of clarity, since classification of seven articles is in issue, we have divided this judgment into three categories. Before dealing with the issue of classification, certain points are required to be clarified.;