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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 ..... Act. 2. Another issue involved in these appeals is whether parts and accessories of optical fibre cables are classifiable under Heading 90.33 as against 85.44 of the Central Excise Tariff. 3.1 Shri P.C. Jain, learned Advocate mentioned that the assessee, an undertaking of State Government of Madhya Pradesh, manufacture Optical fibre cables in respect of which first classification list No. 1/89 effective from 1-7-1989 was filed by them classifying the product under Heading 90.01 of the Tariff; that the proper officer approved the classification in November, 1989; that subsequently the assessee filed classification list from 1990 to 1994 which were not approved by the Department and they continued to pay the Central Excise duty under Heading 90.01; that seven show cause notice from 22-10-92 to 22-4-94 were issued to them alleging contravention of Rule 9(1) 52A, 173F and 173G of the Central Excise Rules, 1944 on clearance of optical fibre cables and parts and accessories by paying duty under Heading 90.01 instead of Heading 85.44 without proposing any changes in the classification lists. For the first time a show cause notice dated 9-6-94 was issued to them proposing changes in clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awing tower where the same is heated at one end to the melting point and then this end is pulled downwards using a computer controlled process to draw the fibre and a thin coating of UV cured acrylate is simultaneously applied to it; this coating is invisible to the naked eye; the third step involves colouring of fibres for purposes of identification using various types of colouring ink; loose tubings in which two fibres (one coloured and one with natural colour) are placed in a loose tube into which jelly is filled with the two fibres being loosely accommodated in the tube; Stranding of loose tubes; loose tubes (3 numbers or 6 numbers) along with filler PE cord are stranded around FRP center Tension Member to form the core of the cable. Jelly is applied during the core manufacturing stage and a polyester film is wrapped around the core which is held in place by PE Tapes; PE sheathing and jacketing. It is the loose tube cores which are sheathed with black LDPE and to provide extra strength to the cable with respect to rodent attack, suitable nylon jacketing is also done. 4.2 Learned Advocate emphasised that process of sheathing is carried out only on loose tubes which have been st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. v. Union of India [1985 (19) E.L.T. 329 M.P.] wherein it has been held that a show cause notice is not an empty formality and the law requires that the show cause notice should give an opportunity of leading evidence in support of ones allegation and controverting the charge or allegation as are made against the persons called upon to show cause; that a mere opportunity of submitting an explanation is not enough. Reliance has also been placed on the decision in the case of Crystic Resins (India) Pvt. Ltd. v. CCE, New Delhi [1985 (19) E.L.T. 285 (Tri.)] wherein the Tribunal has clearly held that the notice issued should have explained the process of reasoning. The Tribunal has held therein that "it is not enough to assume that the notice receiver will read his mind and know what he means by the notice; he must be told as clearly as possible by the Central Excise why he was considered disentitled to the exemption." Learned Advocate contended that as this has not been specifically mentioned in the show cause notice in question, it is liable to be set aside. Finally, he submitted that there can not be any short levy unless and until the classification of the product is appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tariff and as such the demand of duty confirmed under other Orders survive. Regarding Appeal filed by the Revenue, learned Senior Departmental Representative reiterated the ground contained in the memo of Appeal according to which the RT 12 returns of the assessee were assessed provisionally as the declarations filed by them under Rule 173B and Rule 173C of Central excise Rules, 1944 for the relevant period have not been approved by the proper officer; that the Assistant Collector had ordered for provisional assessment on 24-3-92; that therefore, the assessment for the period of six months prior to the Order of provisional assessment should be treated as provisional and demand of differential duty is recoverable in view of Section 110 of the Finance Act. 7. We have considered the submissions of both the sides. Heading 85.44 applies, inter alia, to optical fibre cables, made up of individual sheathed fibre, whether or not assembled with electric conductors or fitted with connectors. Heading 90.91 reads as under : "Optical fibres and optical fibre bundles; optical fibre cables other than those of Heading No. 85.44; sheets and plates of polarizing material; lenses (including con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Office of Chief General Manager Telecommunication Projects, Bombay according to which the optical fibre cables in question is not made up by individually sheathed 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. Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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