2009 (5) TMI 636 - AT - Central Excise

Summary

Issues involved: Grant of exemption from payment of duty under Notification No. 6/2002-C.E., interpretation of entry No. 34 in List No. 37, relevance of previous Tribunal decisions, justification for stay and waiver of pre-deposit, interest and penalty aspects.

Grant of exemption from duty: The appellant argued for exemption from duty based on previous Tribunal decisions and the description of the entry in item No. 34 of the list No. 37 in Notification No. 6/2002-C.E. The respondent contended that the decision was based on an opinion by DGHS and distinguished the case from Saberwal Surgical. The Tribunal noted the distinguishing features and refused a blanket stay based on the issue being referred to a Larger Bench.

Interpretation of entry No. 34: The impugned order highlighted the differences between the product in question, disposable cannula for blood vessels, and the product in the Saberwal Surgical case, 'scalp vein infusion sets.' The decision in Saberwal Surgical was based on expert certificates, while the respondent had a certificate from DGHS. The Tribunal found no infirmity in the order and refused waiver of pre-deposit.

Relevance of previous Tribunal decisions: The appellant argued that the Supreme Court's dismissal of the appeal against Saberwal Surgical concluded the issue. However, the Tribunal emphasized that a decision must be understood within the context of what was decided in that specific case. The Tribunal also noted that the Medisphere Marketing case had no relevance to the current matter.

Justification for stay and waiver of pre-deposit: The Tribunal found no prima facie case for granting a stay regarding the demand of duty and no financial hardship warranting a waiver of pre-deposit under Section 35F of the Central Excise Act, 1944. The Tribunal stayed the demand of penalty and interest pending appeal but required the duty amount to be deposited within 8 weeks.

Interest and penalty aspects: The Tribunal considered a prima facie case for staying the interest and penalty aspects due to the issue regarding the interpretation of the entry. The duty demanded was to be deposited within 8 weeks, and compliance was scheduled for a future date.

Conclusion: The Tribunal required the duty amount to be deposited under the impugned order within 8 weeks, while staying the demand for penalty and interest until the appeal's disposal. Compliance was set for a specific date in 2009.