2012 (8) TMI 657 - AT - Central Excise

Adjournment Held that - Merely because the advocate is on summer vacation, it cannot be a ground for adjournment of the matter - request for adjournment is rejected Demand personal penalty - classification - Polyurethane Moulded Foam Seat Cushion - department s contention is that the same is classifiable under Chapter sub-heading 39263010 whereas the assessee s contention is that the same is classifiable under Chapter 94 Held that - Chapter Note 1(a) of Chapter 94 which reads thus pneumatic or water mattresses, pillows or cushions, of Chapter 39, 40 or 63. Apparently, cushions which fall under Chapter 39 are excluded from Chapter 94 - no fault with the impugned order classifying the produce under Chapter 39 - penalty is sought to be imposed not only on the firm but also on the partners which is clearly not permissible pre deposit waived /stayed partly.

Summary

Issues: Classification of product (Polyurethane Moulded Foam Seat Cushion), Stay of demand, Imposition of penalty on firm and partners

Classification of Product:
The issue revolved around the classification of the product, Polyurethane Moulded Foam Seat Cushion, manufactured by the appellants. The department argued for classification under Chapter sub-heading 39263010, while the appellants contended that it should be classified under Chapter 94. The adjudicating authority had sided with the department's classification for the period in question. The Tribunal examined the relevant chapters, noting that Chapter 39 specifically mentions Polyurethane Foam, whereas Chapter 94 pertains to seats for motor vehicles. The appellants presented a sample of the product, indicating its use for cushion seats in vehicles. The Tribunal considered Chapter Note 1(a) of Chapter 94, which excludes cushions falling under Chapter 39. Ultimately, the Tribunal found no fault with the order classifying the product under Chapter 39 due to its use in manufacturing vehicle cushions.

Stay of Demand:
The applications filed sought a stay of the demand confirmed against the appellants under the order passed by the Addl. Commissioner of Central Excise and confirmed by the Commissioner (Appeals). The demand amounted to Rs. 10,01,347, inclusive of duty, interest, and penalties. The Tribunal, after hearing both parties, directed that 60% of the duty amount be deposited within 10 weeks. Upon such deposit, the remaining duty amount, interest, and penalties imposed would be waived until the appeals were disposed of. This decision was based on the facts and circumstances of the case and the materials on record.

Imposition of Penalty on Firm and Partners:
The Tribunal noted that under the impugned order, penalties were imposed not only on the firm but also on the partners, which was deemed impermissible. Considering the case's specifics, the Tribunal did not find a prima facie case for a total waiver of the duty amount demanded. Therefore, they directed the partial deposit of the duty amount as mentioned above, with the remaining duty, interest, and penalties being waived until the appeal's resolution. The Tribunal set a deadline for compliance and ultimately disposed of the applications based on the outlined decisions.