THIRD MEMBER ON REFERENCE : JUSTICE K.K. USHA, PRESIDENT MAJORITY ORDER PER : DR. S.L. PEERAN, MEMBER (J) AND SHRI K.C. MAMGAIN, MEMBER (T) BPL LIMITED Vs. COMMISSIONER OF CENTRAL EXCISE, CALICUT

JUDGEMENT

(1.) THE issue involved in this appeal is whether the defibrillators Model DF 2389 without Recorder and DF 2389R with Recorder falling under sub -heading No. 9018.00 manufactured by the appellants are entitled for exemption under Notification No. 8/96 -C.E. dated 23 -7 -1996 (listed at item No. 7) and Notification No. 4/97 -C.E. dated 1 -3 -1997 (listed at Sl. No. 7 of List No. 6).

(2.) THE appellants M/s. BPL Limited are manufacturing and clearing 2 models of the defibrillators model DF 2389 without Recorder and DF 2389R with Recorder. They filed classification declaration No. 7/96 under Rule 173B of Central Excise Rules, 1944 claiming exemption under Notification No. 8/96 -C.E. dated 23 -7 -1996 and in declaration No. 9/96 -97 dated 1 -3 -1997 under Notification No. 4/97 -C.E. dated 1 -3 -1997. On investigation, it was revealed that exemption is available to only DC Defibrillators for internal use, and they were liable to pay duty @ 5% ad valorem. Accordingly, a Show Cause Notice was issued to them demanding the duty and proposing for penal action. The Show Cause Notice was adjudicated by the Commissioner of Central Excise, Cochin -II, under Order No. 2/99 dated 19 -11 -1999 wherein he confirmed the duty of Rs. 27,71,236/ - demanded under the Show Cause Notice and also imposed a penalty of Rs. 27,71,236/ - under Section 11AC of the Central Excise Act, and a penalty of Rs. 1,00,000/ - under Rule 173Q of Central Excise Rules, 1944 and interest at appropriate rates under Section 11AB of Central Excise Act. Appeal was filed by the appellants against this order before CEGAT. The CEGAT vide Order No. 288/2002, dated 1 -3 -2002 [2002 (142) E.L.T. 615 (T)] remanded back the case for de novo adjudication on eligibility of exemption under the relevant notifications as the Commissioner has come to findings on an incomplete reading of the manual and had not considered the well settled law on FOR USE as relied upon by the learned Advocate. The case was re -adjudicated by the Commissioner under Order -in -Original No. 1/2003, dated 22 -2 -2003 and the present appeal is against this order of the Commissioner.

(3.) SHRI Arvind Dattar, learned Senior Advocate appeared for the appellants and the learned Jt. CDR, Smt. Shoba L. Chary appeared for the Revenue.