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The Commissioner, however, by order dated 22.02.2003 upheld the earlier order of the Commissioner and once again denied the benefit of the notification to this product of the appellant. According to the Commissioner the benefit of the exemption notification was available only to implantable defibrillators coupled with pace makers.

The appellant once again filed the Appeal before the CESTAT, Bangalore. After hearing, an order dated 31.12.2003 was passed, wherein there was a difference of opinion between the Judicial and Technical Member. As per the order of the Judicial Member, the Defibrillator manufactured by the appellant could be used for internal use and therefore they are eligible to the benefit of the notification. Since his opinion was in favour of the appellants on merits, he did not go into the time bar issue. The Technical Member while admitting that the Defibrillator could be used for internal use in “rare circumstances” when the heart is open and the paddles for internal use are fixed in the Defibrillators as there is a build in mechanism in the Defibrillator for making it usable as internal Defibrillator during an open heart surgery, however denied the benefit of the notification on the ground that only Defibrillators used with pace maker and which is implantable is eligible to the benefit of the notification.

We now reproduce the relevant portion of the two Notification Nos. 8/96 and 4/97 with which we are directly concerned. These are as follows:-

“II. Notification No.8/96 dated 23.07.1996- TABLE (7) D.C. Defibrillators for internal use and pacemakers.

(16) Implantable cardiac pacemakers.

(58) Pace Maker.

III. Notification No.4/97 dated 01.03.97 TABLE

217. Medical equipment and other goods specified in List 6.

LIST 6 (7) DC Defibrillators for internal use and pace\ makers.

(16) Implantable cardiac pacemakers.

(58) Pace Maker.” From the reading of the aforesaid notifications, it becomes apparent that originally those D.C. Defibrillators which were meant for both internal as well as external use and also pacemakers and their accessories etc. were eligible for exemption. Certain goods which did not qualify for exemption like cardiac monitor, Cardioscopes etc. were specifically excluded. On the other hand some of the components of D.C. Defibrillators which were exempted from payment of Excise duty were also specifically mentioned. For our purposes what is relevant is that in the original Notification dated 11.06.1986, as amended on 01.03.1989 and 01.03.1994, the goods which qualified for exemption were “Defibrillators for internal and external use and pacemakers and their accessories including patient cable internal defibrillator paddles 45mm and 55mm sizes”. Implantable cardiac pacemaker and accessories were also specifically included. This entry under went a substantial challenge in the notification No. 8/96 dated 23.07.1996. In this Notification, replacing the earlier notifications, defibrillators for external use are no more eligible for exemption. The entry now reads “D.C. Defibrillator for internal use and pacemaker”. Thus, what is omitted is not only external use but also accessories of these D.C. Defibrillators. Likewise in place of earlier entry which mentioned on implantable cardiac pacemaker and accessories, entry in this Notification confines only to implantable cardiac pacemakers. Accessories thereof are specifically removed from exemptions. Moreover in place of pacemaker wires now it is only pacemaker. Though in the earlier notification, patient cable for pacemaker was included as exempted item, it is omitted altogether in Notification No.8/96. This position is maintained in Notification No.4/97 dated 01.03.1997.