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TMI Blog2004 (5) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... ts are manufacturing defibrillators model DF 2389 without Recorder and DF 2389R with Recorder falling under sub-heading No. 9018.00 of the Schedule to the Central Excise Tariff Act. They filed a classification declaration No. 7/97 under Rule 173B of the Central Excise Rules, 1944 claiming exemption under Notification No. 8/96-C.E., dated 23-7-96 and declaration No. 9/96/97, dated 1-3-97 under Notification No. 4/97-C.E., dated 1-3-97. The Superintendent of Central Excise under his letter dated 17-2-98 directed the appellants to revise the classification declaration since the department took the view that defibrillators of the type cleared by the appellant are not entitled to exemption from duty. Being not satisfied with the reply given by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Discharge/Damp Relay (iii) High Voltage Retractable, Flexible Wire (iv) Polyester/Paper Discharge Capacitor 20. Implantable Cardiac Pacemaker and accessories 30. Pacemaker Wires 31. Patient Cable for Pacemaker II Notification No. 8/96, dated 23-7-96 - TABLE (7) D.C. Defibrillators for internal use and pacemakers (16) Implantable cardiac pacemakers (58) Pace Maker III Notification No. 4/97, dated 1-3-97 - TABLE 217. Medical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given in Medicine and Clinical Engineering Physiological and Clinical Medicine by Bertil Jacobson Karolinska Institute, Stockholm, Sweden, Jhon G. Webster, University of Wisconsin, Madison quoted by the appellant it reads as follows :- "Some cardiac arrhyhmias can be treated by passing a brief electric shock through the heart. Venticular fibrillation can often be stopped before circulatory arrest has caused irreversible brain damage due to oxygen deficiency. Likewise, atrial fibrillation and atrial flutter can often be stopped by defibrillation. Ventricular fibrillation may be caused by an external electric shock, which occurs near the peak of the T wave - the vulnerable period when the ventricle is repolarizing. It may also be caused wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbination with Pacemaker. 5. As mentioned earlier, the Notification No. 339/86 as amended by Notification Nos. 88/99 and 58/94 took in both DC Defibrillator for internal and external use. While including accessories in the above items specific reference was made to 'internal defibrillator paddles with 45 mm and 55 mm sizes'. It is relevant to note that there is a marked difference in the description of the item when it came to Notification Nos. 8/96 and 4/97. There is no reference to D.C. Defibrillators for external use or a specific reference to 'internal defibrillator paddles'. Even according to the assessee, its product can be treated as D.C. Defibrillators for internal use only when it is fitted with internal defibrillators. Admittedly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the upper chest. Leads are the wires that conduct the ICD to the heart the tip of which is placed against the heart's inner wall and carries electric impulses from the ICD to the heart through the cut vein into the heart's chambers beginning with the right ventricle (www chfpatients com)." 7. The above would show that D.C. Defibrillators for internal use included in the exempted category cannot be taken as a defibrillator for external use cleared by the appellant with an accessory of internal defibrillators paddles. A reference to reply received from Jerry Potts to the appellant's query would also lead to such a conclusion. The reply reads as follows :- "Implantable defibrillators are definitely distinct from 'Internal' defibrillators us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto it as he was inclined to allow the appeal on merits. Since the Members have not expressed any view on the issue of limitation, it is not proper for me to consider the question of limitation on merits, even though, it was contended on behalf of the appellant that the dispute relates to interpretation of a notification and when the issue is not very clear as there was difference of opinion between the two learned Members, it is a fit case to accept the contention of the assessee that there was no wilful mis-statement or suppression of facts or contravention of any of the provisions of the Act or the Rules with intent to evade payment of duty. It is for the regular Bench to consider the issue on merits. 10. Appeal will be placed before th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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