TMI Blog2019 (2) TMI 1300X X X X Extracts X X X X X X X X Extracts X X X X ..... lants. The learned Commissioner (Appeals) has correctly found that the products manufactured by the appellant is polyurethene form in the required shape to be used as cushion for revolving chairs are furniture, as such they do not find any entry under Chapter 94 and in views of the specific entry under Chapter 3926 30 10, the products are to be classified as held by the order-in-original/order-in-appeal. Cum-duty benefit - Held that:- The appellants are eligible for cum duty benefit - in order to verify the eligibility of the appellants for Cenvat Credit and for quantification of demand after allowing cum duty benefit, the case requires to go back to the jurisdictional Assistant/Deputy Commissioner. Penalty u/s 11AC - Held that:- The issue has already been raised by the department and Additional Commissioner vide adjudication order dated 03/08/2007 has confirmed the classification in favour of the Revenue. In spite of the same, the appellants continued to classify the impugned goods under Chapter 94. It is not brought to our notice if an appeal has been filed against the said order and if a stay was granted - Penalty upheld. Appeal allowed in part and part matter remanded. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Wood Craft Product Ltd. 1995 (77) ELT 23 (SC) and Bakelite Hylam Ltd., - 1997 (91) ELT 13 (SC). HSN notes are binding especially when the tariff is that part with HSN. They also submitted that in view of the ratio of the following cases, the products manufactured by them merit classification under Chapter 94: i) The classification of Chapter Heading 39 and 94 in the CETA, 1985 during the period Juy 2002 to March 2005 is as under: For the period July 2002 to March 2005, the heading 39.26 read as under: 36.26 Other articles of Plastics and articles of other materials of heading Nos.39.01 to 39.14 3926.10 Of polyurethane foam 3926.90 Other For the period April 2005 to May 2007 the new classification for heading 3926 is as under: 39.26 Other articles of plastics and articles of other materials of heading 3901 to 3914 3926.10 Office or school supplies 3926.30 Fittings for furniture, coach work or the like 3926 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n rectangle/square are generally classified in headings 39.18, 39.19 or 39.22 to 39.26 and even if the blocks are cut into rectangular/square shape the same would merit classification under Chapter heading No.39.20 and 39.21, as per the Chapter Note 10 of Chapter 39. He further submitted that Chapter note 1 (a) of Chapter 94 of CETA 1985, Chapter 94 does not cover (a) pneumatic or water matt5resses, pillows or cushions, of Chapter 39, 40 or 63. He also submitted that CBEC Vide Circular No.10/89 dated 10/02/89 clarified that if the polyurethene foam product obtained were in the form of blocks of regular geometric shape, that is to say were similar to each other in dimension like height, breadth, length and curventure whether or not printed or otherwise surface worked (evenif when so cut, they become articles ready for use) then by virtue of note 10 of Chapter 39, such products would merit classification under Heading 39.21. 4. Heard both sides and perused the records. 5. For a proper appreciation of the dispute involved, it is worthwhile to have a look at the relevant chapter notes of CETA, 1985 of Chapter 39 and 94 reproduced below: i) The classification of Chapter Heading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants. It is seen that they are supplying polyurethene foam blocks cut into different shapes. These are further used in the manufacture of chairs or moor vehicle seats. When there is a specific heading, the same is to be preferred. It is seen that the items manufactured by the appellants are basically cushion for seats. 6. In view of the chapter note 1 (a) to Chapter 94 Section XX, these are not covered under Chapter 94. Therefore, we find that this cannot be classified under Chapter 94 as claimed by the appellants. We find that the learned Commissioner (Appeals) has correctly found that the products manufactured by the appellant is polyurethene form in the required shape to be used as cushion for revolving chairs are furniture, as such they do not find any entry under Chapter 94 and in views of the specific entry under Chapter 3926 30 10 and as clarified by the CBEC vide circular cited above, the products are to be classified as held by the order-in-original/order-in-appeal. 7. As regards the appellant s contention based on the different case laws cited by them, we find that the original authority has correctly distinguish the case and holding that the ratio of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X
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