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TMI Blog2003 (1) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... th the sides in this case argued the matter on the stay petition only and after their arguments, the matter was reserved for recording order. On going through the case records, prima facie we are of the view that there are certain infirmities in the impugned order in regard to invocation of the proviso to Section 11A for demand of duty in one of the show cause notices vis-a-vis the order impugned and also imposition of combined penalty under Section 11AC and 173Q as could be seen from the following observations : (a) There are total six show cause notices issued in this case for different periods, out of which five have been issued by the Supdt. of Central Excise within a period of six months, proposing to demand duty for different periods, under Rule 9(2) read with Section 11A(1) of the Central Excise Act, 1944, while the Commissioner has issued a show cause bearing C. No. V/94/15/30/99 CX. Adj., dated 24-4-1999 proposing to demand duty of Rs. 90,35,316/- for the period from 23-6-1995 to 16-11-98, invoking the longer period of limitation in terms of the proviso to Section 11A(1) of the Act. The impugned order has been passed covering all these six show cause notices. However ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose stand Aristo used to keep wet grinders on it. (3) Plastic multi-purpose stand 200 T used to keep semi-automatic washing machines. (4) Plastic multi-purpose stand 400 T used to keep fully automatic washing machines. (5) Plastic teapoy mainly used in house and restaurants or in office for using as a tea table or Centre Table. (6) Plastic TV Trolley mainly used for keeping TV. The department took the view that the plastic goods manufactured by the appellants were rightly classifiable as furniture under Chapter Heading 94.03 of the CETA. Inasmuch as the appellants have not filed any declaration in terms of Notification No. 13/92-C.E. (N.T.) to the department intimating production and clearance of excisable goods claiming exemption from payment of duty at any point of time nor did they register themselves with the Department nor followed the procedures envisaged under the Central Excise Act and the rules made thereunder for the period from 6/95 onwards, proceedings were initiated against them by issue of show cause notices as noted above and the proceedings culminated in the order impugned. Aggrieved by the said order the appellants have come in appeal on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Heading 94.03 as well as for demand of duty was a combined one as the Commissioner in the show cause notice has dealt with classification aspect in paras 1, 2, 6, 7 and 10(ii) thereof and in the subsequent show cause notice also the wrong classification adopted by the assessee has been dealt with. Therefore, we are of the prima facie view that the appellants cannot have any grievance for issue of combined show cause notice both for demand of duty as well as for classification. Further, the classification of the goods under Heading 94.03 as adopted by the department also finds support from the decision of the Tribunal in the case of Periwal Plastics Pvt. Ltd. v. CCE, Bangalore reported in 1998 (104) E.L.T. 398 wherein it was held that according to the scheme of HSN, items like telephone stands, pedestal stands, hall stands, umbrella stands, easels and the like would be covered by the heading 94.03. The Tribunal in the said decision also relied on the judgment rendered by the Hon ble Punjab Haryana High Court in the case reported in 1980 (6) E.L.T. 350 wherein it was held that trolley for air cooler has to be regarded as furniture falling under TI 40 of the erstwhile Tariff. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Oral)]. - I have carefully gone through the order prepared by my learned Brother but, I could not persuade myself to agree to the directions given by him to the appellant and for remanding the matter. 10. The reason being that the matter was listed for hearing the stay application and we have heard only stay matter. There was no admission made by the appellant with regard to liability of Rs. 20,68,994/- as recorded by my brother in his order. Ld. Consultant had vehemently argued that the entire demands were barred by time and they are not liable to pay any sum for grounds taken up by them in the appeal memo and the stay application. They had cleared indicated and relied on large number of Tribunal s judgments which had held the item to be not an item of furniture for classification under chapter 98. He also relied on the Tribunal s ruling rendered in Sinter Plast Containers v. CCE - 1999 (107) E.L.T. 351 (T) wherein the trolleys were held to be classifiable under chapter Heading 87.16. Also, in the case of Sintex Industries Ltd. - 2000 (117) E.L.T. 536 had also held that Ice Box is an household article and is liable to be classified under Chapter Heading 39.24 and not as furnit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and appeal to be listed out-of-turn for final hearing as held by Member (Judicial) in his order. Sd/- (Jeet Ram Kait) Member (T) Dated : 5-11-2002 Sd/- (S.L. Peeran) Member (J) Dated : 5-11-2002 12. [Order per : P.G. Chacko, Member (J)]. - The conflict of decisions in the regular Bench has brought the matter before me as third Member. 13. Examined the records. The appeal is against the order of the Commissioner confirming against the appellants a demand of duty of over Rs. 1.26 crores for the period 23-6-1995 to 31-3-2000 and imposing penalties of Rs. 15 lakhs, Rs. 67,15,480/- and Rs. 5 lakhs on them under various provisions of law and in relation to various periods. A stay application was also filed by the appellants seeking waiver of pre-deposit and stay of recovery in respect of duty and penalty amounts, pending the appeal. It appears from the record of the Tribunal s proceedings that the stay application was heard by the regular Bench on 22-10-2002 and order reserved. ld. Member (Technical), who recorded the order for the Bench, disposed of the appeal itself finally by way of remand. On the other hand, ld. Member (Judicial) allowed the stay ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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