Archana Wadhwa, Member (J)
1. The prayer in the application is for condoning the delay of about 3 1/2 months in filing the appeal. As per facts on record the appellant had earlier challenged the impugned order before the Hon'ble High Court of Gujarat. The said Writ Petition was dismissed by the Court on 25th October 2004 with directions to the appellant to file an appeal there against before Tribunal within a period of four weeks from that date was, the appeal subsequently filed within the said period. In view of the forgoing, we condone the delay in filing the same.
2. The demand of duty of Rs. 3,16,98,655/- has been confirmed against the first applicant M/s. Aquaguard Plastics & Polymers Pvt. Ltd. along with imposition of identical amount of penalty. In addition penalty of Rs. 5 lakhs has been imposed on Shri G.D. Mundhra Director of the Company.
3. Arguing on the applications Shri P.M. Dave Ld. Advocate appearing for the appellant submits that the appellant is engaged in the manufacture of HDPE and LDPE Drip Irrigation System and Sprinkler Irrigation System. The applicants' claim is to classify the said system heading 84.24 as Drip Irrigation System and its parts. On the other hand, the revenue is classifying the pipes and the other parts as articles of plastic under heading 39.17; hence the demand.
5. Our attention has been drawn to the various orders of the Tribunal, wherein an identical products were considered and were held to be the parts of the Drip Irrigation System falling under heading 84.24. The Tribunal's decision in the case of Elgi Ultra Appliances Ltd v. Commissioner [1999 (35) RLT 175] was confirmed by the Hon'ble Supreme Court when the appeal filed by the Commissioner was dismissed as reported in [2000 (120) ELT A119]. To the similar effect is the Tribunal decision in the case of Hallmark Industries v. CCE [2000 (122) ELT 540 (Tribunal)] and the subsequent decision of the Chennai Bench in the case of Flow tech Power v. Commissioner of Central Excise (2001 (42) RLT 220 (CEGAT). The ratio of all the above decisions is that the Plastic Tube and Pipes having been specifically designed to work exclusively with the sprinkle irrigation system are classifiable as parts under sub-heading 8424.00 and Notification No. 46/94 attracts nil rate of duty during the period in question. As such, we are of the view that the issue is prima facie covered by the precedent decisions of this Tribunal. The demand also prima facie appears to be barred by limitation inasmuch as the fact of manufacture of these goods and classifying the same under heading 84.24 was duly intimated to the Revenues, as accepted by the Commissioner in his impugned order. His reasoning that the classification was claimed wrongly under Chapter 84 instead of Chapter 39 for invoking the longer period of limitation does not appeal to us. In view of the forgoing decisions, we allow the stay petitions. As the amount involved is on the higher side, we fix the main appeals also on 30.6.05.