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2005 (4) TMI 110 - CESTAT, NEW DELHIManufacture Of Optical fibre cables - demand of differential duty raised u/s 11A - finalisation of the assessment - Whether parts and accessories of optical fibre cables are classifiable under Heading 90.33 as against 85.44 of the Central Excise Tariff - HELD THAT:- The Revenue has also not brought any material on record to prove that this thin coating of acrylate is not invisible to the naked eyes. The Appellants have also brought on record the Certificate given by the Department of Electrical Engineering of SV Government Polytechnic, Bhopal according to which cables manufactured by the assessee are multi fibre sheathed cables. They have also brought on record the opinion given by the Chief Electrical Manager (P) in 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. Consequently, the Appeal filed by the Revenue is rejected.
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