TMI Blog2018 (1) TMI 959X X X X Extracts X X X X X X X X Extracts X X X X ..... .3.1 above. It is seen that the expression used in many places is 'encased in rigid sheath', 'encased in sheath', 'in a sheath composed of layers of paper', 'in a sheath of lead or tin', 'machines for braiding a wire sheath on hose of rubber', 'consisting of a simple wire mesh sheath' etc. which clearly indicates that 'sheath' is by itself an object. In those circumstances it is seen that the tariff does not recoganise coating as sheathing and treats the two as different. The term 'sheath' refers to a separate object which is used to encase other items. Whether the telecommunication wires and cables are classifiable under heading 85.44 and therefore the fibre optic cables used for telecommunication should also be classified under the same heading? - Held that: - all insulated conductors (including enamelled or anodised) are classifiable under heading 85.44. The heading is not limited to telecommunication wires. It covers all insulated wires and cables, including those used for telecommunication. The tariff has deliberately chosen to differentiate between the optical fibre cables containing individually sheathed fibr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Reliance Communication Infrastructure Ltd (supra) the tribunal had essentially agreed with the detailed findings of Authority for Advance Ruling in the case of Alcatel Ltd. In the referral order the referring bench has examined certain litrature and arrived at the conclusion that the decision in the case Reliance Communication Infrastructure Ltd (Supra) was not correct as the same was arrived at in absence of certain documents/litrature. The referring bench has reached a prima facie view that the correct classification should be 85.44. Hence the reference. 2.1. Learned counsel for the appellants argued that the product under consideration is Optical Fibre Cable (OFC) imported by the appellants. Bill of Entry (e.g. No.707343 dated 5.12.2008) describes the product as under: 48F (OFC) OPTIC FIBRE CABLE WITH G-652 D FIBRE The appellants have described the OFC with following attributes i) length of 4 kilo meters, ii) made of a black colour outer tube/jacket. iii) black outer jacket/tube is, inter alia, made up of six tubes iv) Each of the six tubes has a unique/distinct colour in accordance with the standards laid down by T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m abrasion. Prysmian Wuxi Data Sheet also mentions UV Cured acrylic resin as Coating material. Prysmian in his letter dated 29.10.2006 has, inter alia , described the diameter of core, 'core+clad', 'core+clad+ UV acrylate coating' and 'core+clad+ UV acrylate coating + colour coating' as 9 um, 125 um, 250 um and 260 um respectively. The thickness of colour coating is generally 10 um. 2.3.1. Learned counsel pointed out that prior to 1986 there was no direct reference of 'Optical Fibre cables' in the tariff. Relevant portion of HS code as introduced in 1986 relating to Chapter 70 and Headings 85.44 and 90.01, read as under:- Chapter 70 - This Chapter does not cover: (c) optical fibre cables of heading 8544, electrical insulators (Heading 8546) or fittings of insulating material of heading 8547; (d) optical fibres, optically worked optical elements, hypodermic syringes, artificial eyes, thermometers, barometers, hydrometers or other articles of Chapter 90; 7019 Glass fibres (including glass wool) and articles thereof (for example, yearn, woven fabrics) 8544 Insulated (including enamelled or anodised) wire, cable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng addition were made in 1986 when the HSN Explanatory notes to Headings 8544 and 9001 were introduced for the first time: (i) Heading 8544 The heading also covers optical fibre cables, made up of individually sheathed fibres, whether or not assembled with electric conductors or fitted with connectors. The sheaths are usually of different colours to permit identification of the fibres at both ends of the cables. Optical fibre cables are used mainly in telecommunications because their capacity for the transmission of data is greater than that of electrical conductors (ii) Heading 9001 This heading covers: (A) Optical fibres and optical fibre bundles as well as optical fibre cables other than those of heading 85.44 Optical fibres consist of concentric layers of glass or plastics 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. Optical fibres are usually presented on reels and may be several kilometres in length. They are used to make optical fibre bundles and optical fibre cables. Optical fibre bundles may be rigid, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings or subheadings of the Harmonised System; and (iii) it shall follow the numerical sequence of the Harmonised System. As indicated in Article 7 of the Convention one of the functions of the Harmonised System Committee was to prepare Explanatory Notes, classification opinions or other advice as guides to the interpretation of the Harmonized System. 8.5 Thus, the Harmonized System Explanatory Notes are the authentic material which can be used for understanding the commodity description. When reliance is placed on HSN Explanatory Notes, which are duly published and known in the field concerned, there can arise no question of any opportunity to cross-examine the members of the Harmonized System Committee which prepares the Explanatory Notes, classification opinions or other advice. Therefore, the contention raised on behalf of the appellant that the Commissioner could not have referred to the opinion of the World Customs Organization Committee has absolutely no basis. The Commissioner, in fact, relied upon the HSN Explanatory Notes while also referring to the opinion of the Committee, which confirmed the classification of the goods in question under Heading 8905.20. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be mentioned in the HSN explanatory notes of Heading 8544. He argued that HS Committee obviously felt that Optical Fibre Cable, also for telecommunication purposes should also fall in Heading 8544. Therefore, despite the position that the all other products of optical fibre like 'optical fibre', 'optical fibre bundles' and 'optical fibre cable consisting one or more such bundles' are covered in Heading 9001 (which is the chapter of naked optics and light), telecommunication cables, albeit of optic fibre, were alone intended to be covered by Heading 85.44. 2.8. Learned counsel argued that HSN Explanatory Notes of Heading 85.44 has adopted colour coating (colour coding) applied on the optical fibre as an easy and simple but conclusive and decisive way of distinguishing the goods of Heading 90.01 from Heading 85.44. HSN lucidly points out different colours is to permit identification of fibres at both ends of the cable. 2.9. Learned counsel argued that the OFC imported in the present case consists of optical fibres (core + cladding) each coated with dual layers (two layers) of acrylate coating. Every such optical fibre coated with dual layers of acryl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er along their full length (in case of rigid bundles), or bound at their ends (in case of flexible bundle). He argued that fibers of the product in question are not 'bound at their ends' or 'agglomerated by a binder along their full length', therefore, the product in question is not covered by second leg of Heading 9001 as optic fibre bundle, Learned counsel pointed out that the product in question 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 consist of hundreds or thousands of optical fibres as mentioned in following technical literatures: (i) Mastering Optics by John Blackwell and Shane Thornton ( page 152-153 ) (ii) Introduction to Fiber Optics by John (iii) Technical literatures from a) Fibre Optics and lasers by Ashok Ghatak @ pg 36 38), b) Book How it works by Marshall Cavendish (Pg 80) and Book Fibre Optic Essentials by Casimer M DeCusatis (pg 184 and 185) He argued that the product in question is not covered by second leg of Heading 9001 as optic fibre bundles. 2.10.3. Learned counsel argued that for third leg of HSN Explanatory Notes to Chapter 9001 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd, 2007 (216) ELT 337 (SC) wherein the Supreme Court noted with approval decision of Canadian Customs Tribunal. 2.11.3. Learned counsel argued that the dual acrylate coating over core + clad is sheath. He relied on the Explanatory Notes to the Combined Nomenclature of the European Communities, OFC of Sub Heading 85447000 consists of dual layers of acrylate polymer which are inner sheath and outer sheath. 2.12. Learned counsel relied on para 3.13 of book 'Practical Fiber Optics' by David Bailey and Edwin Wright (page 48) states that the cladding diameter and sheath diameter illustrated in this figure, are accepted as standard for most fibers used world-wide, with the core diameter and refractive indices varying depending on the type of fiber. The core+clad diameter and core+clad+sheath diameter as mentioned in the diagram are 125 um and 250 um respectively. OFC imported in the present case is identical product with same diameters (Refer product Data sheets and ITU standard as mentioned above). As can be seen, coating over cladding is a sheath. He also relied on the following technical literature. (i) S. Chand's Engineering Physics by M.N. Avadh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition, it must be pointed out that on the side of the respondents, no other material is produced to discredit the affidavits and letters filed by the appellant before the CEGAT. As a matter of fact, it is seen from the order of the Central Board of Excise that such affidavits and letters were also produced in the year 1981 and they were taken note of by the Central Board of Excise. Nonetheless, the learned counsel appearing for the respondent, as pointed out earlier, criticised the affidavits as manufactured evidence . We would like to comment on this that it is not fair to call the affidavits and other letters as 'manufactured evidence' as they were not produced before the Court for the first time. They were produced long ago before the Central Board of Excise and instead of taking steps to produce materials to dislodge that evidence, it is not open to the learned counsel for the respondent to merely state from the Bar that the affidavits and letters are manufactured evidence. .. 37. The learned counsel also placed reliance on a number of judgments to support his argument that in common and commercial parlance the product is known as medicine rather than cos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere only or since it goes beyond sub heading/heading it will not be classified there. In the present case, we are not concerned with such situation since the product is question does not fall under Tariff Item 85447010 without any dispute. He argued that when 8 digit Tariff Item goes beyond Sub Heading/Heading, such 8 digit Tariff Item cannot be used for interpretation of the scope of Sub Heading/Heading. In any case, the appellants have established that optical fibre cables covered under the Heading 8544 or Sub Heading 8544 70 include optical fibre cable for telecom purposes only and not optical fibre cable for lighting purposes, from the text of Heading 8544 as well as from the text of Heading 9001. He argued that the 8 digit tariff item 85447010 cannot be used for interpretation of Tariff Heading 9001. 2.16. Learned counsel argued that reliance placed on letter dated 14.1.2009 issued by TEC is misplaced. The said letter does not give justify and give reasons why the fibres are not individually sheathed. It also does not give any reason or explanation, what is sheathing for optical fibre. This letter was not based on any technical material. He argued that as against the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f referral order). 3.1.1. He argued that a lot of observations of the bench were based upon a visual inspection of an optical fibre which is 245 microns in diameter. The Bench states that they were able to appreciate with their naked eyes, a core of 9 microns thickness, a cladding of 62.5 microns thickness and a coating of 55.5 microns thickness. (A micron is a 1000 th part of a millimeter). He argued that this is contrary to normal human faculties and an impossibility. 3.1.2. He argued that the HSN Explanatory Notes to CTH 8544 and 9001 make a distinction between fibre' and optical fibre having 'a very thin coating of plastic invisible to the naked eye'. He argued that all optical fibres are coated and these coated fibres need to be placed in a sheath to be considered as sheathed fibres. He argued that a coating is not the Sheath. 3.1.3. He argued that the Order states that, the Bench inspected Optical Fibre Bundles used in endoscopes, in which there were hundreds/ thousands of uncoated optical fibres. It states that 24/48 optical fibres together is not a bundle. Only when hundreds or thousands of optical fibres are put together, it may be called a bundle. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gel Filled Loose Tube Optical Fibre Micro Cables For Outdoor Microduct Applications with Thin Film Binder and Embedded Sheath Tear Features. d. Corning cable Systems Generic Specification For All Dielectric Self Supporting (ADSS) Loose Tube Optical Fibre Cables for Outdoor Applications. e. Coming Cable Systems Generic Specification for Gel Free Loose Tube Optical Fibre Cables for Mining and Petrochemical Industrial Low Smoke, Zero Halogen Applications. f. Coming Cable Systems Generic Specification for Armoured Single Tube Optical Fibre Cables for Outdoor Applications g. Altos Lite Loose Tube, Gel Filled, Single Jacket, Single Armoured Cable, 48 Fibres, Single Mode OS2 h. Coming Cable Systems Generic Specification for Singl Mode Optical Fibre in Tight Buffer Cables i. Coming Cable Systems Generic Specification for Single Mode Tight Buffer Optical. Fibre Cables for Tactical Applications j. Corning Cable Systems Generic Specification for Tight Buffer Optical Fibre Cables for Indoor/Outdoor Breakout Applications k. Corning Cable Systems Generic Specification for Tight Buffer Optical Fibre Cables (Simplex and Duplex) for Indoor Interconnect Appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Aluminium Polyethylene Sheath Structure for Duct Application) p. Asahi Jacketed Multi Core Fibre cable. q. Asahi Kasei Specification for plastic Optical Fibres, Multi Core POF r. FiberTechOptica, All Silica VIS/NIR Fibres with Acrylate/Silicone/Polyimide Coating and Acrylate/ Nylon/Tefzel Jacketing s. FibertechOptica, Hard Polymer Clad Silica (I-PCS) Fibres with Tefzel Jacket t. FiberTechOptica, Broadband Optical Fibres u. FiberTechOptica, Solarization Resistant Fibreswith Acrylate/Silicone/Polyimide Coating and Acrylate/ Nylon/Tefzel Jacketing v. FiberTechOptica, Plastic Clad Silica (PCS) Fibre w. Advanced Fiber Tools, GmbH, Single Mode Fibres with Acrylate Coating or Polyimide Coating or metal Coating and Opti.onal Buffers. Learned AR argued that from the above trade nomenclature, technical brochures and product details of the suppliers coming cable systems ltd. prysmian group and other manufacturers of optical fibres and OFCs and the primary supplier of coating materials and i.t.u., it is clear that a coating is an essential and integral part and component of an optical fibre. 3.5. Learned AR made following points on the bases o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned AR for the Revenue assailed the said referral order on inconsistencies, some of points raised are listed below :- (i) While in para 3 of the order the Dual Acrylate coating has been described as an Opaque object in para 12 (17), it is stated that the acrylate coating is a transparent polymer. This is not relevant in the facts of the case (ii) In para 3 (iv) the referral order states that 'Surrounding the optical fibre core is called the cladding. The cladding, typically, is also made of silica (glass) and has an outer diameter of 125 microns. The buffer coating over the cladding is made of an UV curable acrylate. It has been pointed out by the Leamed AR that as per diagram appearing in para 9.1 of the referral order there is no buffer coating shown, but the reference only to 'Buffer tube' exists. It has been argued that primary coating has wrongly been ref-erred as buffer coating. (iii) Learned AR has argued that the para 9 of the referral order refers to some technical books without identifying the same. (iv) While in para 9 it has been stated that 'Dual acrylate coating is an opaque coating of acrylate monomer' in para 12 (17), it is st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... An outer jacket covers the assembly. And this jacket is sometimes filled with a jel or thin wires to strengthen the cable assembly. He argued that this article describes the general configuration of all types of optical fibres for all purposes (transmission), whether for telecommunications or for illumination. It does not say that the UV cured Acrylate coating is the sheath. It does not say anything about the sheath at all. (ix) Learned AR argued that in para 10(iv) of referral order reliance has been placed on Article on optical fiber by Pirelli downloaded from www.pirellityre.com states that ...Current optical fibres for telecommunications are single-mode fibers. The product is described as 'a guiding nucleus of roughly 10mm diameter and an index jump of 0.1%. The diameter of the sheath is standardized at 125mm'. He argued that the said product to totally different and almost a 1000 times thicker that the product under consideration. (x) Learned AR argued that in para 10(v) of referral order reliance has been placed on Book on Basics of Fiber Optic Gyros by Wolff Data which states that an optic fiber consists of two concentric layers of high-purity sill ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ext of a fibre and as an article/casing/tubing in the case of a cable. (xvi) Learned AR argued that the referral order relies on the Hon'ble Supreme Court decision in the case of Commissioner of Central Excise v. Woodcraft - 1995 (77) ELT 23 (SC) which rules that any dispute regarding tariff classification must, as far as possible, be resolved with reference to the nomenclature indicated by the HSN unless there be an express different intention indicated by the Central Excise Tariff itself, but it does not follow the HSN Explanatory Notes at all. Rather, it relies on Technical literature and gives findings which are totally contradictory to the HSN Notes. He argued that the term 'sheath' is used in both CTH 8544 and 9001 in two contexts. A 'sheath' around the fibre and as a 'sheath' of the cable. In both contexts the same meaning has to be assigned to the word 'sheath It cannot be understood to be a 'coating' in the context of a fibre and as an article/casing/tubing in the case of a cable. (xvii) He argued that reliance on the opinion of M/s. Prysmian Wuzi Cable Co. Ltd., China vide Letter dated 29/10/2006 is misplaced as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso relies on the HSN and does not fault with HSN. (xxii) He argued that there is no evidence that European countries and USA have exempted such cables borne by the Rulings. He argued that there are no rulings of the EC. It is only an amendment to the Explanatory Notes to the EC Nomenclature. No evidence is given on the EC's exemptions subsequent to ITA. The Ruling in the USA is on a dispute and against the Manufacturer/Supplier. There is no evidence of any exemption subsequent to ITA. The ITA is for exempting specified goods related to Information Technology and not to goods related to Telecommunications. He argued that though the ruling of ARA is not binding but the goods under consideration, as described in the ARA Order, being identical to the goods in these Appeals, the findings have persuasive value. The ARA is headed by a retired Justice of the Supreme Court of India. (xxiii) He argued that the referral bench relied on the opinion of the Department of Electrical Communication Engineering Institute of Science, Bangalore, while rejecting the opinion of Telecommunication Engineering Centre (TEC), though both did not refer to any technical litrature. 4. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in which the said words have been used in the tariff and HSN elsewhere. In this regard the HSN has the same status as a Statute, specially on the issues of classification. Thus a recourse can be made primarily to the HSN as the appellants too have contended by relying on the decision in the case of Jagson International Ltd. v. CC- 2006 (199) ELT 553 (T). It is seen that the Hon Apex court, however, does not bar use of the definitions in trade or in Dictionary. In fact the decisions cited by the appellants above clearly lay down that the. trade meaning has to be given prominence. In the following paragraphs we examine the manner in which the term 'Sheath' or 'Sheathed' has been used in the HSN. 4.2.1. The HSN/Tariff uses the word 'Sheath' and 'Sheathed at various places. Learned AR has listed out the manner in which these words have been used. We have seen that the word 'Sheath' has been used. Heading/Sub Heading Text 85.44 The goods of this heading are made up of the following elements : . (C) In certain cases a metal sheath (e.g., lead, brass, al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eathed in base metal. This metallic sheath may be flanged to facilitate heat exchange, and the element may be fitted with a support and a head for convenience of insertion into and extraction from the Reactor. 85.16 They have a reinforced protective sheath which is highly resistant to mechanical stress and to seepage from liquids, semi-flu-d (other than solid) substances and gases. A powder (usually magnesium oxide) with good dielectric and thermal properties holds the wire resistor (resistance) in place within the sheath and insulates it electrically.' 28.44 These products in the form of bars, plates, spheres, threads, powder, etc., are used either for the manufacture of fuel elements or, sometimes, directly in the reactors. Bars, plates and spheres, contained in a sheath and fitted with special attachments for handling purposes, fall in heading 84.01. (4) Spent or irradiated fuel elements (cartridges), that is, those which, after more or less extensive use, must be replaced (e.g., because the accumulation of fission products is hampering the chain reaction or because the she ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnated, coated, covered or sheathed with plastics, of heading 56.04. Chapter 59 Note 4 For the purposes of heading 59.06, the expression rubberised textile fabrics means : (a)-- (b) Fabrics made from yam, strip or the like, impregnated, coated, covered or sheathed with rubber, of heading 56.04; Chapter 59 Note 6 Heading 59.10 does not apply to : . (b) Transmission or conveyor belts or belting of textile fabric impregnated, coated, covered or laminated with rubber or from textile yarn or cord impregnated, coated, co v ered or sheathed with rubber (heading 40.10). 59.03 This heading also includes textile fabrics made from yarn, strip or the like, impregnated, coated, covered or sheathed with plastics, of heading 56.04 59.06 This headingcovers : . (B) Fabrics made from yarn, strip or the like, impregnated, coated, covered or sheathed with rubber, of heading 56.04. 59.10 The heading also excludes : . (b) Belts or belt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 9001 10 00 Optical fibres, optical fibres bundles and cables It is seen from the above tariff entries that all insulated conductors (including enamelled or anodised) are classifiable under heading 85.44. The heading is not limited to telecommunication wires. It covers all insulated wires and cables, including those used for telecommunication. The tariff has deliberately chosen to differentiate between the optical fibre cables containing individually sheathed fibres and others. The tariff /HSN classifies them separately in different headings and different chapters. The legislature if it wished to classify all optical fibre telecommunication cables under heading 85.44 could have stated so. The HSN specifically mentions only the telecommunication wires made up of insulated wires. It is seen that the tariff entries do not make any distinction on the basis of use of the product. The sole distinction is based on the basis of the manner in which the fibres are 'sheathed'. 4.3.1. The appellants have relied on the following note in the HSN of chapter 85.44 to assert that optical fibre cables used for telecommunication would be classifiable under heading 85.44 ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lometres in length. They are used to make optical fibre bundles and optical fibre cables. Optical fibre bundles may be rigid, in which case the fibres are agglomerated by a binder along their full length, or they may be flexible, in which case they are bound only at their ends. If coherently bundles, they are used for transmission of images, but if randomly bundles, 'hey are suitable only for transmission of light for illumination. Optical fibre cables of this heading (which may be fitted with connectors) consist of a sheath containing one or more optical fibre bundles, the fibres of which are not individually sheathed. Optical fibre bundles and cables are used primarily in optical apparatus, particularly in endoscopes of heading 90.18. It is seen that the explanatory notes do not state that all telecommunication OFC cables would be classified in heading 85.44. All it says is that Optical fibre cables are used mainly in telecommunications because their capacity for the transmission of data is greater than that of electrical conductors' It is not the case of the appellants that OFC's which are not made of 'individually sheath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent that only 'individually sheathed' fibres would be classifiable under heading 8544 70 00. Moreover this is an amendment made in the said HSN to specifically include something in a particular heading. The HSN notes relevant in this case are not the same. Moreover the appellants have not placed before us the exact description of the said heading in the said tariff of European Communities. 4.5. The appellants have sought to rely on certain documents they have described as Cross Rulings by US Customs. A perusal of the said documents show that they are just replies to the letter sent by appllants by some Director of the Commercial ruling division. There is no mention of the organisation and the nature of office. It is not clear as to what is the authority and legal standing of such a ruling. It appears to be an opinion of some official, after examining the Harmonised Tariff Schedule of the United States (HITSUS). It is at best an opinion of a person working in Commercial ruling department of some office. These are old documents and ulitmate fate of the so called 'ruling' are not Known. As against this, the tribunal in the case of Reliance Communication Infrastru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) In a situation in which India is a signatory nation to an international treaty, and a statute is made to enforce a treaty obligation, and if there be any difference between the language of such statute and a corresponding provision of the treaty, the statutory language should be construed in the some sense as that of the treaty. This is for the reason that in such cases what is sought to be achieved by the international treaty is a uniform international code of law which is to be applied by the courts of all the signatory nations in a manner that leads to the same result in all the signatory nations. In the case relied upon by the appellants the Hon Apex court was dealing with interpretation of domestic statute in relation with international treaties. There is no such treaty obligation to follow the so called foreign Cross-ruling in India. Especially so because its authority and legal status itself is in doubt. 4.6. The appellant have sought to rely on the following expert opinion of the suppliers :- a) Letter dated 29.10.2006 by M/s. Prysmian Wuzi Cable Co. Ltd., China b) Opinion by President Corning India on behalf of M/s. Corning Cables Systems Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly describes the cross section of the optical fibre. It shows that there is a core over which there is layer of cladding. The. light travels in this section of the fibre' Over the cladding there is a layer of coating or sheathing. The diagram reproduced above in para 4.8 shows one such sketch. It is apparent that the cladding needs a cover in the shape of coating or in the shape of sheath. None of this litrature describes that the coating as a sheath. All that ii says that there is a layer over the cladding which can be either a coating or a sheath (as is also apparent from the sketch above). 4.8. The appellants have also sought to rely on certain other literature which is dealt with below : (i) The appellants as well as the referral order relies on a post downloaded from the website: everything2.com which is being referred to as an article. All that the said post says is that there is a sheath over the cladding in the fibre. A perusal of the post shows that the author is named as 'Rancid Pickle'. The website allows people to write after registering as is apparent from the following remark in the webpage 'Log in or register to write something here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aths are usually of different colours to permit identification of the fibres at both ends of the cables', implies that the dual acrylic coating is sheathing. The argument is misplaced. Colouring is solely for the purpose of identification of fibres at both ends. If the fibre is individually sheathed then either sheath or fibre can be coloured. If the fibre is not individually sheathed then the fibre has to be coloured. No conclusion regarding the 'dual acrylic coating' being sheath can be arrived on this basis. No purpose will be served by colouring the sheath if the fibre is not individually sheathed and there are more than one fibres in a sheath. In other words only if the fibre is individually sheathed that the colouring of sheath would enable identification of fibres at both end. If fibres are not individually sheathed then each fibre has to be colour coded as each sheath would contain multiple fibre that would need identification at both ends. Thus in relation to the heading 85.44, where fibres are individually sheathed, the sheaths have to be of different colour. 4.10. To appreciate the trade understanding of the term 'Sheath' it is necessary to exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eet required specifications. 1.2 Each optical fiber shall be sufficiently free of surface imperfections and inclusions to meet the optical, mechanical, and environmental requirements of this specification. 1.3 Each optifal fiber shall consist of a core surrounded by a concenfic glass cladding. 1.4 Each optical fiber shall be proof tested by the fiber manufacturer at a minimum of 100 kpsi (0.69 GB/m 2 ). 1.5 the fiber shall be coated with a dual layer acrylate protective coating. The coating shall be in physical contact with the cladding surface. 1.6 The attenuation specification shall be a maximum value for each cabled fiber at 23 +5 0 C on the original shipping reel. b. From item (b) in the list in para 3.3 above pertaining to 'Coming Cable Systems Generic Specification for Loose Tube Optical Fibre Cables for Outdoor Applications' submitted by the learned AR following are some excerpts: 3.21 Armored cables wit an inner jacket shall have an inner sheath of MDPE. The minimum nominal jacket thickness of the inner sheath shall be 0.8 mm. For reduced diameter (RD) cables, the minimum nominal jacket thickness for the inner sheath shall be 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Dual Acrylic coating as sheath . 4.11. As far as the Dictionary Meaning is concerned the tribunal in the case of Reliance Communication Infrastructure Ltd. (Supra) agreed with the detailed findings of Authority for Advance Ruling in the case of Alcatel Ltd. In the said decision the tribunal has approved the following findings of Authority for Advance Ruling in the case of Alcatel Ltd. and observed as follows. 13. Since the terms 'sheath' and 'coating' are not defined or explained in the HSN or the Act, we have to understand them in the sense in which they are understood by English speaking people ordinarily as well as in scientific/technical context. Therefore, necessarily, we have to look for the meaning of these words in the dictionary which, in our view, would give a reasonably clear perception of what a 'sheath' and 'coating' ordinarily stand for and how they are commonly understood. This is what we found. The New Shorter Oxford English Dictionary - 1993 Edition Sheath 1 A close-fitting case or covering for the blade esp. of a sword, dagger, etc. when not in use; b A case or covering with a similar function ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention that the products in question should be classifiable under tariff heading 8544, the applicant referred to the HSN Explanatory Note for heading 8544 in which the issue of insulation of conductors has been dealt with. In our view, it is of no help to them. That Explanatory Note merely states that for insulation purpose, one or more coverings of insulating materials are generally used and in certain cases the insulation is obtained by anodizing or by a similar process (e.g., the production of a surface coating). In fact, in the same Explanatory Note, the word 'sheath' has been used in contradistinction to coating when it clarifies that in certain cases a metal sheath (e.g., lead, brass, aluminium or steel) serves as a protective covering for the insulation of a conductor. It is, therefore, clear that the coating and sheathing are two different entities, though both of them may have the same function, namely, insulation of conductors. We are, therefore, unable to appreciate as to how the expression individually sheathed fibres employed in the heading 8544, would justify the view that a 'coating' given on the cladding of an optical fibre, becomes a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic text. Relevant extract optical fibre Pirelli on by Pirelli The article describes an optical fibre as a dieleectric cylinder consisting of two coaxial regions: a central region known as nucleus, characterised by high refraction index, and an external region known as the sheath (or shell) characterised by a lower refraction index. It does not call the dual acrylic coating as sheath. In fact it would appear to call the cladding as sheath, which is not the case of the appellants. Relevant text on Basics of Fibre Optic Gyros by Wolff Data The article says that an optical fibre consists of two concentric layers of high-purity silica glass, the core and the cladding, which is enclosed in protective sheath. It does not say that the Dual acrylic coating is a sheath. Pg 51-53 Imported OFC is not a bundle of optical fibres as the bundle of optical fibre bundles are used only for illumination when incoherently bundled and image transmission when coherently bundled and also because the bundle of optical fibres consist of hundreds or thousands of optical fibres as mentioned in followin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Protective casing implies that the fibre has to be individually sheathed. The said amendment, however, describes the dual acrylic coating also as sheath.However classification under the said heading requires a protective casing over and above the dual acrylic coating. These notes cannot be relied upon without examining the text of relevant tariff heading. Technical opinions support the submission on classification under Heading 85.44 Letter dated 29.10.2006 by M/s. Prysmian Wuzi Cable Co. Ltd., China It is seen that the said opinion was obtained by writing a letter to M/s. Prysmian Wuzi Cable Co. Ltd., China (pg 105) wherein a draft opinion was enclosed. The draft opinion was agreed to by the foreign supplier. This cannot be treated as a fair opinion. The said opinion does not rely on the brochures or the data sheet of the said supplier to describe the dual acrylic coating a sheath. It merely echoes the draft opinion sent by appellants to the foreign supplier. Letter from the appellants and Opinion by M/s. Prysmian Wuzi Cable Co. Ltd., China It is only the draft opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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