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TMI Blog2005 (4) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... fibre. Revenue on the other hand, has not brought any technical opinion to rebut the opinion/Certificate brought on record by the assessee. The Deputy Commissioner in the Order in Original No. 13/2002 has referred to the test report given by the Chief Examiner, CRCL, which, according to him, does not give direct reply to the query whether optical fibre cables are made up of individually sheathed fibre or not. We also agree with the learned Advocate that as the classification of the impugned product depends only on the fact whether the optical fibre cables is individually sheathed or not, the end use can not be a factor for determining the classification of the fibre. Accordingly, we hold that the Department has not proved that the impugned optical fibre cables is made up of individually sheathed fibres so as to warrant classification under Heading 85.44. Accordingly, we set aside the impugned order and allow all the Appeals filed by the assessee without going into other submissions raised by the learned Advocate. Consequently, the Appeal filed by the Revenue is rejected. X X X X Extracts X X X X X X X X Extracts X X X X ..... them should be classified under Heading 85.44. 3.2 He, further, mentioned that another show cause notice dated 7-6-95 in respect of parts and accessories of optical fibre cables was issued proposing classification under Heading 85.46 instead of 90.33 claimed by the assessee; that this show cause notice was also adjudicated by the Assistant Commissioner vide Order-in-Original No. 2/96, dated 10-1-1996 classifying the joint closures under Heading 85.44; that the Assistant Commissioner under another Order-in-Original No. 106/96, dated 19-11-96 confirmed the demand of duty and imposed penalty. 3.3 He also mentioned that a show cause notice dated 29-5-1997 was issued for demanding the duty for the period 20-9-90 to March, 1992 on the ground that these assessments were provisional in terms of Rule 9B of the Central Excise Rules; that the Assistant Commissioner under Order-in-Original No. 6/99 dated 16-3-99 confirming the demand of duty and ordered payment of interest also. 4.1 Learned Advocate submitted that the show cause notice issued by the Department is very vague as it does not mention the basis for the view taken by the Department that the optical fibre cables manufactured by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c of different refractive indices. Those drawn from glass have a very thin coating of plastics, invisible to the naked eye, which renders the fibres less prone to fracture." He mentioned that in their case also, the fabrics are drawn from glass having a very thin coating of UV Acrylate and this is squarely covered by the Explanatory Notes of Heading 90.01. He also contended that even if tube is considered as sheathing, it contains two fibres and not individual fibre. He also mentioned that two samples of the optical fibre cables manufactured by them were sent for examination to the Department of Elect. Engineering, SV Government Polytechnic, Bhopal who certified that the cables manufactured by them are multifibre sheathed cable; that they had also sought expert opinion from T.C. Raghvan, General Manager, Telecommunication Project, Bombay who has opined that the optical fibre cables manufactured by them and supplied to Department of Telecommunication are not made up of individually sheathed fibre and that the fibres are only given a protective coating of resin which is integral part of fibre. He also pointed out that optical fibre cables (identical in structure and design to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... changed from Heading 90.01 to Heading 85.44 in view of the inconsistency and infirmity in the Order-in-Original; that once the said Order had been remanded, the other Orders-in-Originals confirming the demand do not survive. 6. Countering the arguments Shri R.C. Sankhla, learned Senior Departmental Representative, submitted that Heading 85.44 of Central Excise applies to "optical fibre cables, made up of individually sheathed fibres, whether or not assembled with electric conductors or fitted with connectors" that as per the Concise Oxford English Dictionary, 10th Edition, Revised, sheathing means "protective casing or covering," and sheathe means "encase in a close-fitting or protective covering." He submitted that by putting a UV cured acrylate coating on individual fibre, sheathing of individual fibre has been done and as individual fibre has been sheathed, it is squarely covered by Heading 85.44 of the Central Excise Tariff. In this regard, he relied upon the Explanatory Notes of HSN below Heading 85.44 wherein it is mentioned that "the sheaths are usually of different colours to permit identification of the fibres at both ends of the cable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 85.44 and all other optical fibre cables fall under Heading 90.01. The process of manufacture, as given by the assessee and mentioned in brief in Order-in-Original No. 13/2002 dated 8-8-2002 clearly shows that after the fibre has been drawn and coloured for identification purposes, two fibres are placed in a loose tube filled with jelly and these loose tubes, (three numbers or six numbers) are stranded around FRP center tension member to form the core of the cable. In the process of manufacture, nowhere it is mentioned that the fibre is sheathed individually which is required for classifying it under Heading 85.44. Learned Advocate has referred to Webster's English Dictionary, 1983 edition, according to which "Individual" means "subsisting as one indivisible entity or distinct being; single; pertaining to one only." There is substantial force in the submissions of the Advocate that even if the stage of placing fibres in loose tubes is treated as the process of sheathing, no individual cable is sheathed, as even according to Order-in-Original No. 13/2002, two fibre cables are placed in the loose tubes. No material has been brought on record by the Revenue t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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