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TMI Blog2017 (3) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... has relied on the following decisions: (a) Eximel India Vs. union of India - 1994 (114) ELT 398 (b) Judgment dated 18.3.1998 in W.P. No. 1144/1989 in the case of Bharti Surgical Co. Vs. Assistant Collector of Customs (c) Unival Surgical Traders Vs. Union of India - 1999 (114) ELT 811 (Mad.) (d) Manoj Surgical Industries Ltd. Vs. Commissioner of Central Excise - 2006 (198) ELT 422 (e) Commissioner of Customs Vs. Saberwal Surgical (P) Ltd. 2000 (117) ELT 400 3. According to the appellant, the goods imported are covered by SI. Nos. 19 or 42 or 44 of Part B to the Notification No. 208/1981 -Cus. dated 22.9.1981, which reads as under:- "Sl. No. 19: Intravenous cannulae and tubing for long-term use. Sl. No. 42: Disposable and non-disposab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Vide Bill of Entry No. 05/083 dated 30.9.1988 the goods was "Lifesaving equipment viz. Intravenous Cannulae and tubing for long term use (Infusion Solution Administration Sets)" Copies of such Bills of Entry are available in the appeal folder. On the basis of material on record and averments of appellant, he framed the issue as to whether the goods imported, described as "Intravenous" Cannulae and Tubing for long term use (Infusion solution Administration Sets' would fall under any or all of the Sl. nos. 19, 42 or 44 of notification 208/81". 7.1 According to the appellate authority below, the goods imported as above are not covered by any of the entries 19,42 or 44 of Part B of the Notification for the reasons that Sl.No.19 of (Part B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the goods are capable of long-term use. The term 'long term use' is to be read as having been specifically incorporated with the express purpose of ruling out exemption to intravenous cannulae capable of short-term use. This expression has been analysed in the case of Unival Surgical Traders, wherein long term use has been interpreted to mean that a needle must be capable of being kept in the vein for a long term and not that it should be repeatedly used. Now, therefore here the expression 'long term' has to be interpreted technically and not being defined, would become a subjective issue. The appellant has not furnished any material evidence to prove that the goods are capable of long-term use; therefore in the absence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bulb. 7.4 Lastly learned Commissioner (Appeals) as certained as to whether the goods would be covered by sl.No.44, (supra) as infusion sets which are specifically covered under "Ancillaries for blood component therapy required for the treatment of cancer" According to him the goods are undoubtedly Infusion sets as seen from the invoice. What is to be examined is whether the infusion sets are exclusive to or at least also capable of use in blood component therapy for the treatment of cancer, in addition to its other uses. The invoice lays no such claim to such specialized use. It merely qualifies the description as 'Pediatric' in plain language that these are infusion sets used in pediatric applications i.e., for children in a gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings.
11. It may be stated that the burden of proving eligibility to the exemption lies on the claimant. Appellant failed to show that "Lifesaving Equipment viz. Infusion Solution Administration Sets" and "Lifesaving equipment viz. Intravenous Cannulae and tubing for long term use (Infusion Solution Administration Sets)" satisfy the condition of exemption. In absence of discharge of burden of proof by the appellant, there is no scope to consider its claim of exemption. Accordingly, on the basis of framework of law and appellant failing to satisfy the requirement of the grant of exemption, order of learned Commissioner (Appeals) remain uninterfered. According present appeal is dismissed.
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