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2015 (12) TMI 1200 - CESTAT MUMBAI

2015 (12) TMI 1200 - CESTAT MUMBAI - TMI - Classification of Optical Fibre Cables used in Telecommunication - exemption under Notification No. 20/2005 dt. 1.3.2005 - Held that:- Since there are judgments of differing opinions, Our differing view is based to a significant extent on the Technical books/Literature, the benefit of which was not available to the bench in the case of Reliance Communications Infra Ltd case or in Optel Telecommunication Ltd. Therefore in our opinion, the matter needs to .....

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case:-

Whether Optical Fibre Cables (OFC in short) imported by Vodafone Group of Companies and used in Telecommunication are classifiable under Customs Tariff Heading 8544 and eligible for exemption under Notification No. 20/2005 dt. 1.3.2005 or they would fall under Customs Tariff Heading 9001 leviable to basic Customs Duty at 10% under Notification No. 21/2002-Cus dt. 1.3.2002.

Matter referred to larger bench. - Appeal No. C/688/2008, Appeal No. C/48-55/2010, Appeal No. C .....

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ion No. 20/2005 dt. 1.3.2005 or they would fall under Tariff Item 9001000 and be leviable to Basic Customs Duty at 10% under Notification No. 21/2002-Cus. dt. 1.3.2002. 2. On the basis of information that M/s. Vodafone Essar Group of Companies (hereinafter referred as VEG) were misclassifying imported OFC and evading duty, 3 consignments totally valued at ₹ 4.65 Crore imported by M/s. Vodafone Essar South Ltd. (VES) from M/s. Corning Cable Systems Pvt. Ltd. were placed under seizure. Sampl .....

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ions culminated in issuance of show cause notice dt. 17.3.2009. In adjudication, Commissioner of Customs imports confirmed the classification under Tariff Item 90011000 and demanded differential duty amounting to ₹ 3,25,19,948/- under Section 28(2) of the Customs Act. Recovery of interest was ordered under Section 28AB. However, the seizure of goods was withdrawn and no penalty was imposed. Appellant are in appeal against this order. In Appeal No. C/688/2010 Revenue is in appeal against or .....

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electric conductors, whether or not fitted with connectors; optical cables, made up of individually sheathed fibres, whether or not assembled with electric conductors or fitted with connectors. Heading 9001 Optical fibres and optical fibres bundles; optical fiber cables other than those of Heading 8544; sheets and places of polarizing material; lenses (including contact lenses), prisms, mirrors and other optical elements of any material, unmounted, other than such elements of glass not opticall .....

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nsists of - (i) Core made of glass; (ii) Cladding of glass; (iii) Dual Acrylate coating (an Opaque object); (iv) Colour coating over Dual acrylate coating. The centre region of the fibre is called core. This region actually carries the light. The optic core ranges in diameter from 8 microns to 62.5 microns in the most commonly used telecom fibres. The diameter of imported cable fibre is 9.2 microns. Surrounding the optical fibre core is called the cladding. The cladding, typically, is also made .....

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ion of the fibre for joining dining installation. The contention is that each of the strands of optical fibre is individually cladded, coated with dual acrylate coating and colour coated. Therefore it should be treated as a fibre individually sheathed, hence classifiable under CTH 8544 & eligible for exemption. We were taken extensively through Technical Literature in support of this contention. 3.1 The Ld. Counsel relied on the Order-in-Appeal No. 165/2008/MCH/AC/Gr.VB/07-08 dt. 25.3.2008 p .....

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9001 and thereafter they attempted to clear the goods at Mumbai classifying the same under CTH 8544. He justified the Revenue appeal for confiscating and imposition of penalty on the ground that the appellant were enjoying RMS facility and the status of ACP client and suddenly changed their classification at Mumbai after having classified the goods under Heading 8544 for many years at Chennai. 4.1 He relied heavily on the technical opinion given by TEC, Department of Telecommunications, which s .....

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uot; and hence not classifiable under CTH 8544. He also relied on Optel Telecommunication vs. Commissioner of C.Ex., Bhopal 2005 (186) E.L.T. 109 (Tri-del.) . He relied on the Hon'ble Supreme Court judgment in the case ofCommissioner of Central Excise vs. Carrier Aircon Ltd. 2006 (199) ELT 577 (S.C) holding that "end-use" is not the criteria for determining classification of a product. It was further submitted that the order of Commissioner (Appeals) Mumbai holding that the goods a .....

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of similar goods imported at Mumbai were held to be liable to confiscation: (i) Chicago Pneumatic Ind. Ltd. Vs. Commissioner of Customs 2003 (156) ELT 384 (Tri-Mumbai) (ii) Triveni Engineering Work Ltd. Vs. Commissioner of C. Ex. New Delhi 2001 (129) E.L.T. 170 (Tri-Delhi.) It was also submitted that the Order-in-appeal No. 165 dt. 25.3.2008 may be quashed. He submitted that the opinion obtained from Associate Professor, IIT Chennai by the appellant cannot have legal basis as the samples presen .....

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October in the presence of the DRI Officer. 5.1 The OFC cable was cut across its section. It was found to consist of six tubes and within each tube there were eight optical fibres, each fibre being coated with different colour. Each OFC therefore consists of forty eight numbers of optical fibres. 5.2 The appellants submit that this OFC is made up Single Mode fibres with step index, conforming to ITU-T G652D standards International Telecommunication Union (ITU). 6. We have given careful thought .....

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paras from the High Court judgment as under- "Having heard the counsel on both sides, we are of the opinion that the action of the D.R.I. officers in the Customs Department in seizing the goods and collecting money from the petitioners is wholly unjustified and uncalled for, because, firstly, the Commissioner of Customs (A) in the petitioner's own case has held on 25-3-2008 that the OFC imported by the petitioners are classifiable under Heading 85.44 and, therefore, no fault can be foun .....

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und by the decision given by Commissioner of Customs (A) and, therefore, so long as the decision of the Commissioner of Customs (A) in classifying the goods under Heading 85.44 holds the field, filing of bills of entry by classifying OFC under Heading 85.44 cannot be faulted. Fourthly, the Bills of Entry filed by the petitioners by classifying the goods under Heading 85.44 have been assessed under Heading 85.44 and the goods have been cleared only on payment of duty as assessed. Therefore, till .....

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; ……….The fact that the petitioners themselves were classifying the goods in the past under Heading 90.01 would not preclude them from classifying the goods under Heading 85.44 in the light of the order passed by Commissioner of Customs (A), Mumbai………………………………… ……………The contention of the revenue that the petitioners have voluntarily paid the amount to .....

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issue referred by both sides to have an idea of the judicial views so far on the issue of classification (i) In a case of classification of similar goods, the Tribunal in the case of M/s. Bharat Airtel & Others - 2008-TIOL-2069-CESTAT-MAD dt. 22.9.2008 held that"Commissioner has denied exemption to materials imported by TNTL on a finding that the OFCs manufactured were goods falling under CH 9001 and the exemption was available only if the final products were of CH 8544. Accordingly, he .....

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;….All the personal penalties are set aside and the appeals filed by S/Shri. M.V. Venkateswarlu, DGM, M. Sengupta, MD, TNTL and S.P. Singh Head (Materials) Bharti Airtel are allowed. The appeals of the assessees are allowed by way of remand. The classification dispute shall be decided denovo," (ii) In the case of M/s. Vodafone Essar South Ltd. Vs. Commissioner of Customs, Chennai - 2008-TIOL-1931-CESTAT-MAD, the Tribunal held that the Advance Rulings Authority decision in the case of .....

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s of the goods) as also to be personally heard. The appellants have cited a line of decisions in support of their contention that the burden of classification lies on the Department and therefore there can be no confiscation of imported goods on the ground of misclassification…………….. The authority classifying the goods must see whether the cables are made up of individually sheathed fibers, whether or not assembled with electric conductors or fitted with connec .....

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ust and fair to impose any penalty on the importer even in the event of a decision being taken against them. The learned Commissioner shall have regard to these aspects while taking up the case of de novo adjudication. The impugned order is set aside and the appeal is allowed by way of remand." It is seen that the Tribunal directed that the classification should be decided after examining the goods. (iii) In the case of Optel Telecommunication Ltd. (supra) the department itself desired the .....

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ons that the optical fiber cables drawn from glass have a very thin coating of plastics invisible to the naked eyes". (iv) In the case of Reliance Communication Infra Ltd (supra) and the decision of AAR in the case of Alcatel India it was held that the classification of similar goods is CTH 9001. We would be referring to these decisions in the later part of our Order. 8.1 The classification of the impugned goods has not attained finality as far as the appellant are concerned. We may now exa .....

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cladded by glass. Refractive Index of the core is stated in the technical literature to be lower than that of cladding to ensure total internal reflection of the light passed through the core. Each individual optic fibre is cladded. It is not that a pair of fibers is cladded together. Dual acrylate coating is an opaque coating of acrylae monomer, two times over 'core and clad'. According to the Technical Books, Dual acrylate coating protects optical fiber from external interference and .....

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. ITU-T-6.352 is a standard applied to single mode optical fibre used for long distance telecommunications. Fibre types - mode and multi mode There are two main types of optical fibres with which we are concerned for the present purposes. One is - single mode" fibre and the other is "multi mode" fibre. Single mode fibre is defined as "an optical fibre with a small core, propagating only on mode of light above the cut-off wavelength". Multi mode fibre is defined as " .....

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d of concentric rings of glass where the refractive indices deco as from the centre axis whose purpose is to reduce modal dispersion. Optical fibre for telecommunication is made of very pure silica. It consists of the following components: i) core ii) cladding iii) buffer coating iv) colour coating 10. Having seen the structure and design of the OFC, we may look at the Technical references which throw light on the issue at hand The following Technical Books/Articles have been referred by the app .....

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downloaded form the website: everything2.com states that "The centre fibre is either made of glass or optically pure plastic, about the thickness of a human hair. This fibre is covered by an additional layer of glass that reflects the light back into the centre fibre. A plastic sheath covers the cladding for protection. An outer jacket covers the assembly. And this jacket is sometimes filled with a jel or thin wires to strengthen the cable assembly." (iv) Article on optical fiber by P .....

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oss. These characteristics have made the single-mode fibre the chosen physical carrier for modern telecommunication systems. (v) The Book on Basics of Fiber Optic Gyros by Wolff Data states that an optic fiber consists of two concentric layers of high-purity silica glass which are enclosed by aprotective sheath. The light rays modulated into digital pulses with a laser move along the core without penetrating the cladding. The light stays in the core because the cladding has a lower refracting in .....

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es is different. Technical books state that optical fiber bundles consist of thousands of fibers. "Mastering Optics by John Blackwell and Shane Thornton" states that optical fiber bundles are used for illumination when incoherently bundled and image transmission when coherently bundled. It also states that bundle can contain many hundreds of fibres. The most common applications of incoherent bundles are in endoscopes or in any medical instrument used to obtain an image from within the .....

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re of the imported OFC and the cables used in endoscopy as shown by the Counsel we find that the imported cable is not a bundle of optical fibers or cable containing two or more optical fiber bundles. Optical fiber bundle consists of hundreds or thousands of optical fibers as against total 48 fibers in the OFC imported in the present case. Each optical fiber in the bundle is made up the following:- i) Core made of glass or plastic; ii) Cladding of glass/plastic. We also note that the Dual acryla .....

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Heading 8544 the cables should be made up of individually sheathed fibres. Although we have seen the cables in question to be composed of individual fibres, which according to Technical Literature reproduced above are sheathed, we may refer to the internationally accepted nomenclature i.e. HSN on which our tariff is based and the Explanatory Notes to the HSN, for more clarity. Under the Explanatory Notes to Heading 8544, "the heading also covers optical fibre cables, made up of individuall .....

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cable and the cables are imported for use in long distance telecommunication. To us it does seem that it satisfies the description of Heading 85.44. However we may also see the HSN Notes under Heading 9001. This Heading covers optical fibres, optical fibre bundles and optical fibre cables. It states that "Optical Fibers consist of concentric layers or glass or plastics of different refractive indices. Those drawn from glass have a very thin coating of plastics, invisible to the naked eye, .....

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used primarily in optical apparatus, particularly in endoscopes. 11.1 OFC imported has, in all 48 optical fibres (6 tubes X 8 fibre each). They cannot be called as optical fibre bundle as the optical fibre bundle of Heading 90.01 consist of hundreds or thousands of optical fibres. The fibres used in the present case are for transmission of data. The 48 fibres as such, cannot transmit light or image as required by endoscope or an optical apparatus. As per HSN, optical fibre bundles are used only .....

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fferent intention indicated by the Central Excise Tariff itself. 11.2 We have also been shown the Explanatory Notes to the Combined Nomenclature of the European Communities 2007/C-296/02 which state that "This subheading (8544 7000) includes optical fibre cables, designed for example telecommunication use, made up of optical fibres individually coated with a dual layer of acrylate polymer placed in a protective casting. The coating consists of an inner sheath of soft acrylate and outer shea .....

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cables, comprise of 4 component parts. a) The Optical glass core - Manufactured from silica, and is used as the transmission medium for digital, optical signals. b) Cladding layer - Is manufactured from doped silica and has a slightly different refractive index from the optical core. Thus operates as a form of "mirror" to reflect and retain the optical signals within the core. c) Individual sheathing with a UV curved acrylate is used a protection for the primary components of the fibre .....

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re used, and 3 polyethylene fillers of the same diameter as the tubes are included to fill the vacant space. The stranding is retained with two helical binders. This cable uses "dry core" technology to prevent ingress of water. Two water blocking yarns are placed around the central strength member (one longitudinally and one helically) and over the core, is applied a longitudinal water swellable tape. (ii) Letter from the appellants and Opinion by M/s. Prysmian Wuzi Cable Co. Ltd., Chi .....

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#39;. Thus, each fiber is individually sheathed and hence, the cable in question is made up of individually sheathed fibers. 14) We hereby confirm that the description of the OFC as given in HSN Explanatory Notes is satisfied in the OFC supplied by us. Therefore, in our view, the OFC supplied by us satisfy the tariff description of Heading 85.44 and as such are classifiable under Tariff Item 8544 70 90 of the Customs Tariff of India. 15) As can be seen from the cross-section of optical fiber, ov .....

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or buffer coating or simply buffer, is applied on the fiber "to provide physical and environmental protection for the fiber". 17) The Acrylic resin used as coating in a fiber is a transparent thermoplastic polymer. In this connection, comparison can be made with plastic jackets or sleeves associated with copper wires and it belongs to the same category of thermoplastics. The function of both the coating and jacket is to protect the optical fiber/wire and so both are in fact sheaths. 18 .....

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ive index is what is needed for the proper functioning of the fiber in transmitting/carrying /propagating light from one to other. 19) The application of acrylate coating provides significant protection against abrasion of the optical fibers, enhances tensile strength and reduces the effects of long-term stress, in particular exposure to humid environments which can lead to failure due to a phenomenon called "static fatigue". 20) As a result of technological advances, optical fiber cab .....

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ty and provides additional physical protection to the optical fibers and acts as a sheath to the optical fiber and is as such individually sheathed, classifiable under Heading 85.44." (iii) Certificate dt. 29.3.2009 of the manufacturer M/s. Corning Cable Systems as reproduced below- "To whomsoever it concerns, Corning Cable Systems confirms that we have supplied optical fibre cables to major customers in countries like USA, Canada, Europe (Germany, France, Great Britain, etc.) Middle E .....

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he test sample, supplied by BGR Energy Systems Ltd., Chennai, of OPTIC POWER GROUND WIRE (OPGW) contains 24 optical fibers which are INDIVIDUALLY SHEATHED as per the test conducted in our Applied Photonics Laboratory at ECE Department, Indian Institute of Science, Bangalore. Sample of all the 24 INDIVIDUALLY SHEATHED optical fibers are enclosed in a separate sheet. All these opinions point to the fact that the OFC fall under Heading 8544. 12.1 The appellants submit that if the department's c .....

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single fibre sheathed would be classified under Heading 8544. We agree with the contention of the appellant that the product of Heading 8544 is cable consisting of individually sheathed optical fibers. Therefore, cable must consist of more than one fibre each individually sheathed to merit classification under Heading 8544. As the Pigtail/Patchchord consists of only one fibre, it cannot be classified under Heading 8544. However the context in which the circular is issued is different. 13. The C .....

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ictionary meaning. Here we are dealing with imported goods whereas in the said case the goods were manufactured in India. We have seen that the imported OFC consists of core, cladding, further coated with dual acrylate coating which is mentioned as sheath in technical literature, and colour coating of different colours. Thus, the decision of the CESTAT in Optel case is not applicable in the present case. Interestingly we note that in the Optel case, Revenue was seeking classification under 8544. .....

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g 8544. They have produced copies of 25 B/Es as evidence. At the same time the decision of Tribunal in their own case Reliance Communication Infrastructure Ltd. Vs. CC - 2015 (320) ELT 306 (T) referred to above arose from reopening of their import classification at Nava Sheva during 2005-2006 and department sought to reclassify their goods i.e. OFC under CTH 9001. This shows that Customs were taking a different stand at different times and in different ports. 15. CESTAT in the case of Reliance C .....

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definition of the terms "sheath" and "coating" to draw the distinction between these terms and assumed that "sheathing" means drawing of a tube over an object and held that the dual acrylate coating of different colours is coating and not sheathing. The ARA faulted with HSN and held that HSN confuses between sheathing and coating. Accordingly, the ARA held that the HSN erred in describing the dual acrylate coating of different colours (which is a coating) as sheath .....

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formed by ions near an electrode in a gas tube. (ELECTROMAG] The metal wall of a waveguide. (SCI TECH] a protective case or cover. After seeing the above meanings, we have given deep thought to the views of ARA. We respectfully differ with their views because the purpose and method of sheathing may be manifold. We may therefore refer to some points forming the basis of AAR Ruling. It says that the dictionary meaning of sheath is 'a separate protective cover'. And that the technologicall .....

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oating'. It also holds that the Govt of India's obligation Information Technology Agreement (ITA) is only restricted to cables classifiable under Heading 8544. 15.1 We may also refer to some main points, other than above, which were advanced by the Commissioner in the impugned Order. He states that the dual acrylate coating is an integral part of the fibre and the coating is removed only at the fibre ends to facilitate proper joins at the terminal end. He also refers to the Explanatory N .....

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the cross-examination of the TEC officials that their opinion was not based on any technical books. However we have related above various technical books and articles which clearly refer to the word 'sheath' on a fibre, which is over and above the core and the clad. The Ld counsel states that even if the primary coating is not considered as a sheath, the authorities have ignored the existence of a secondary cover/coating. In our view the authorities have taken a restrictive interpretati .....

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y meaning. In our mind the old concept of sheathing to mean covering with a plastic tube or insulation has to change with the tremendous change in technology over time. Sheathing should not be thought of in the same manner as copper wires are sheathed. We may venture to stay that with rapid changes in technology, we may even see in the forseeable future invention of a method of coating of copper wires that dispense with the need for a separated plastic tube / cover for insulation purposes. With .....

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riving at a more reasonable conclusion. The technological meaning would be equally relevant as the dictionary meaning. The technical literature supports this view. 16. It is also our considered view that the applicability of the ITA agreement should not be rejected for the reason that it would only apply to Heading 8544 and not to 9001 as viewed by the ARA. We are of the opinion that the purpose of the Agreement is to exempt goods of IT industry, which the goods in question certainly are. That i .....

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nt on the authority of the Centre to give opinion on an issue with wide ramifications, we do find that the opinion does not deal with the issue as extensively as it should have. Considering the importance of the issue, we would expect a technical opinion to refer to details of design, features and construction of such cables and the use of modern technology behind the manufacture of such cables. It is significant to note that the cross examination of the official of TEC showed that the officials .....

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Ltd case: Point for consideration Technical Literature Technical material which states that the optical fibre consists of core, clad and sheath of clad/opaque sheath Relevant text on fibre optics in the book "Mastering Optics by John Blackwell and Shane Thornton" Relevant text on optical fibre in the book "Telecommunication System Engineering by Roger L. Freeman Dual Acrylate Coating (an Opaque object) is 'sheath' Article downloaded from the website: everything 2.com Rele .....

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the book"Mastering Optics by John Blackwell and Shane Thornton". Relevant extract on design of Optic fiber and Light from the book "Introduction to Fibre Optics by John Crisp" Sub Heading 8544 70 00 includes optical fibre cables, designed for example telecommunication use, made up of optical fibres individually coated with a dual layer of acrylate polymer placed in a protective casting. The coating consists of an inner sheath of soft acrylate and outer sheath of hard acrylate .....

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