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TMI Blog2018 (1) TMI 959X X X X Extracts X X X X X X X X Extracts X X X X ..... e reference arose because of the referring bench differed with an earlier order of the tribunal in the case of Reliance Communication Infrastructure Ltd v. Commissioner Nhava Sheva - 2015 (320) ELT 306 (Trio-Mum.) and came to a conclusion that such goods are classifiable under heading 9001. In 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 attr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng loss and from 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 (including co- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs 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, in which case the fibres are agglomerated by a binder along their full length, or they may be flexible, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cated 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." 2.5. Learned counsel pointed out that in Article 7 of the Convention one of the functions of the Harmonised System Committee was to prepare E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so 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 acrylate coating is further colour coated for identification of each fibre at both ends of a cable. He argued that the only use the imported OFC is "long distance telecommunication". He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 in optic fibre cables to apply, there should be only one sheath containing one or more optic fibre bundles. In case of product in question, there is one outer tube/ sheath enclosing six tubes. Each of these tube consist of outer tub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. Avadhanulu (ii) "Telecommunication Systems Engineering" by Roger L. Freeman (iii) "Mastering Optics" by John Blackwell and Shane Thornton 2.12.1. He also relied on the following technical literature which he claimed was available in public domain to supports his claim: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cosmetic. As pointed out already and in support of that submission affidavits and letters from Chemists, Doctors and customers are filed to show that the product is sold under prescription only in Chemists shops unlike shampoos sold in any shop including provision shops. This conclusion, namely, that the product is understood in the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation 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 letter of TEC, they have provided the Opinion by IIT which states that the imported OFC is made up of individually sheathed fibres. The said opinion also cite reference to Technical books used for giving Opinion. 2.17. Learned counsel argued that the appellants, in the reply filed before the Commissioner on 26th March 2009, provide one set of sealed samples for ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r). 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 ignores the fact that, all types of optical fibres transmit light. It is through this property that all optical fibres are capable of illumination and imaging. He argued that the Order wrongly surmises that, the Optical Fibres under consideration cannot transmit light. 3.1.4. He argued that the Opinions given by the 2 Suppliers, M/s Coming Cable Systems and M/s Prysmian Wuzi Cable Co. Ltd state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial 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 Applications l. Freedm One Unitized Tight Buffered Cable, Riser 48 Fibres, Single Mode OS2 m. Tactical Tight Buffered Cable 12 Fibres, Bend Improved Single Mode OS2 n. Freedm One Tight Buffered Cable, Riser 24 Fibres, Single Mode OS2 o. Corning Cable Systems Generic Specification for Optical Fibre Ribbons p. Corning Cable Systems Generic Specification for Loose Tube Ribbonized Optical Fibre Cables for Outdoor Applications q. Corning SNIF 28e+ P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of above evidence a. There cannot be an optical fibre without a coating. The referral Order is wrong on the finding that optical fibres with only core and clad exist. b. An optical fibre is always constructed with a coating which is taken into account while determining the geometrical, mechanical and environmental configuration of the fibre. c. The impugned Suppliers and the entire international community which deals with optical fibres and OFCs makes a distinction between coating and sheath. The Product Brochures of Coming Cable Systems Ltd are evidence enough. d. The Referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 stated that the acrylate coating is a transparent polymer. (v) Learned AR argued that the bench has observed that 'Having seen the structure and design of the OFC, we may look at the Technical references which throw light on the issue at hand'. He has argued that the bench could not have possibly seen the features of the fibre as the dimensions are beyond the capacity of the naked eye to appreciate. (vi) Learned AR argued that in para 10(i) of referral orders the referral bench has wrongly asserted that the Book "Mastering Optics by John Blackwell and Shane Thornton" states that the Optical Fibre consists of a core, a clad and a sheath. He ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 glass which are enclosed by a protective sheath. He argued that it does not say that the UV cured Acrylate coating is the sheath. He argued that the picture says that it is enclosed in as protective sheath and not boated. (xi) Learned AR challenged the conclusion reached by the bench that each 'optic fibre has a sheath'. He argued that if all optical fibres are sheathed than nothing will fall under heading 9001. (xii) Learned AR challenged the observation in the para 10.2 of the referral order that the most common applications of incoherent bundles are in endoscopes or in any medical instrument used to obtain an image from within the human body. He pointed out that the book says th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 544 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 Appellants by their letter dated 1/9/2009 to to M/s Prysmian Wuxi cable Co. Ltd. China, sent a draft of a convenient opinion which they wanted from M/s Prysmian. And M/s Prysmian by their letter dt 2.9.2009 sent the same draft verbatim on their letter head as their opinion. (xviii) He argued that the M/s. Corning Cable Systems dt. 29.3.2009 cannot be relied upon as M/s. Coming Cable Systems had raised a contention before the USA Customs that the Loose Tube/ Loose Buffered Cables are classifiable under CTH 9001 as 'not individually sheathed', whereas, the Tight Buffered are only classifiable under CTH 8544. He pointed out that the OFC in these Appeals are Loose Tube/Loose Buffered. He brought our attention to the Cross Rulings 965 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The entire argument of the appellant hinges on their claim that the 'Dual Acrylic Coating' amounts to sheathing of fibre. It has been argued that such coating in made over the core and cladding. In this regard the sole issue that needs determination is if the 'Dual Acrylic coating amounts to 'sheathing'. The argument of the appellant hinges on the following line of arguments. 4.1. The HSN is relevant for the proper classification of the said product in view of the decision in the case of Jagson International Ltd. v. CC- 2006 (199) ELT 553 (T). We are in total agreement with the argument that the HSN is very relevant for the classification. 4.2. First we examine how the term 'Sheath' or 'Sheathed' as it appears in the Tariff and HSN. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, aluminium or steel); this serves as a protective covering for the insulation, as a channel for an insulation of gas or oil, or as a supplementary conductor in certain co-axial cables 90.01 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. 9609.10 Pencils and crayons, with leads encased in a rigid sheath 96.09 Pencils and crayons, with leads encased in wood or plastics or in some cases in a sheath composed of layers of paper. 96.09 Pencils and crayons, with leads encased in a rigid sheath 36.03 (A) Safety fuses and detonating fuses Detonating fuses serve to transmit one or more detonations, and generally comprise a core of pentrite or other explosive in a waterproofed covering of textile material or plastics (flexible fuses) or in a she ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rubber or made from textile yarn or cord impregnated, coated, covered or sheathed with rubber 56.04 Rubber thread and cord, textile covered; textile yarn, and strip and the like of heading 54.04 or 54.05, impregnated, coated, covered or sheathed with rubber or plastics. 56.07 Twine, cordage, ropes and cables, whether or not plaited or braided and whether or not impregnated, coated, covered or sheathed with rubber or plastics 84.01 Combustible metals or alloys thereof in the form of bars or tubes sheathed 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. Chap 46 GENERAL EXPLANATORY NOTES For the. purposes of this Chapter, the following are not considered to be plaiting materials and articles or products made therefrom are excluded from the Chapter : ......... (iv) Textile yarn impregnated, coated, covered or sheathed with plastics (Section XI). HSN Section XI Textiles and Textile Articles 'EXPLANATORY NOTES (B) YARNS, (1) GENERAL ....... However, Chapters 50 to 55 do not include : (a) Rub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 4.3. The next argument of the appellants is that 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. It is seen that the tariff entries read as follows: "8544 Insulated (including enamelled or anodised) wire, cable (including co-axial cable) and other insulated electric conductors, whether or not fitted with connectors; optical fibre cables, made up of individually sheathed fibres, whether or not assembled with electric conductors or fitted with connectors. "9001 Optical fibres and optical fibre bundles; opti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re cables. Only those OFC's which are made of individually sheathed fibres are classifiable under heading 85.44 and others would go under heading 90.01. The intended use of the said cable has no relevance in that regard. 4.3.2. The appellants have greatly relied on the following Explanatory notes to the said headings to assert that the 'OFC used for telecommunication' would be classifiable under heading 85.44 and those used for optical apparatus/ endoscopes' in heading 90.01 (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: 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 indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also used in medical imaging and mechanical engineering inspection. They are composed of three main components: core, cladding and coating. From the above description it is obvious that the coating over the cladding is feature of all optical fibres (including those used in medical imaging and mechanical engineering inspection) and not merely those used in telecommunication. 4.4. The appellants have relied on the Explanatory Notes to the Combined Nomenclature of the European Communities. The appellants have claimed that this specifically covers the cables made of 'dual acrylic coated fibres' under heading 8544 70 00. The said Explanatory Note reads as under 8544 70 00 Optical fibre cables This subheading also includes optical fibre cables, designed for example for telecommunication use, made up of optical fibres individually coated with a dual layer of acrylate polymer placed in a protective casing. The coating consists of an inner sheath of soft acrylate and an outer sheath of hard acrylate, the latter being coated by layer of various colours It is apparent that the said note clearly prescribes that the fibre should be in 'a protective casing'. The pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gations. As a result, rules of international law which are not contrary to domestic law are followed by the courts in this country. This is a situation in which there is an international treaty to which India is not a signatory or general rules of international law are made applicable. It is in this situation that if there happens to be a conflict between domestic law and international law, domestic law will prevail. (2) In a situation where India is a signatory nation to an international treaty, and a statute is passed pursuant to the said treaty, it is a legitimate aid to the construction of the provisions of such statute that are vague or ambiguous to have recourse to the terms of the treaty to resolve such ambiguity in favour of a meaning that is consistent with the provisions of the treaty. (3) In a situation where India is a signatory nation to an international treaty, and a statute is made in furtherance of such treaty, a purposive rather than a narrow literal construction of such statute is preferred. The interpretation of such a statute should be construed on broad principles of general acceptance rather than earlier domestic precedents, being intended to carry out tre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supplier to describe the dual acrylic coating a sheath. It merely echoes the draft opinion sent by appellants to the foreign supplier. The opinion of M/s Coming Ltd. is in the shape of the said draft countersigned by the President Corning India. No reliance can be placed on such opinions. 4.7. Learned counsel relied on para 3.1.7 of book 'Practical Fiber Optics' by David Bailey and Edwin Wright (page 48) to assert that fibre consists of core, cladding and 'coating or sheathing'. The said litrature has following diagram in it to illustrate. 4.7.1. The appellants have also sought to rely on following technical litrature to assert that the dimensions of the fibre described in the aforesaid book matches with the dimensions of the fibre in their case where 'dual acrylic coating' has been used. Reliance has been placed on the following books to assert that the layer over the cladding is called 'Sheath'. (i) "S. Chand's Engineering Physics" by M.N. Avadhanulu (page 150) (ii) "Telecommunication Systems Engineering" by Roger L. Freeman (page 319) (iii) "Mastering Optics" by John Blackwell and Shane Thornton (page 141) It is seen that all this litrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant. All that the said post says is that there is a sheath over the cladding in the fibre. It does not say that the dual acrylic coating is sheathing. 4.9. It has been argued that HSN Explanatory Notes of Heading 85.41 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. It is a fact that the fibres in the cable are coloured on surface to permit identification of the fibres at both ends of the cables. The appellants have relied on large number of references quoted above to assert that fibres of cable need to be colour coded. None of these references say that the 'Dual Acrylic coating is' is a sheath. The fibres in the instant case too are coloured over the dual acrylic coating. The HSN for heading 85.44 states that : 'The sheaths are usually of different colours to permit identification of the fibres at both ends of the cables.' Leamed counsel has sought to argue that since in the present case the colour has been applied to dual acrylic coating and the fact that the HSN states that 'sheaths are usually of different col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... described with images as follows. It clearly shows that the outer plastic covering is referred to as the sheath. 4.10.3. Learned AR has contended that the literature listed in para 3.3 (a) to (t) above describes this product and in none of these literature the 'Dual Acrylic coating' has been described as a 'sheath'. We have examined the said literature. From the said literature (a lot of it is coming from the manufacturers website) it is seen that the word 'Sheath', 'inner Sheath' or 'outer sheath' has been not been used in the context of Dual Acrylic coating. It has only been used in the context of the plastic MDPE layer in which the optical fibers or the buffer tubes are enclosed. Some of the examples cited in the above litrature is reproduced below. a. From item (a) in the list in para 3.3 above pertaining to 'Corning Optical Communications Generic Specification for Single Mode Fibre in Loose Tube and Ribbon Cables' submitted by the learned AR following are some excerpts: 1. General Fiber Specifications 1.1 All fibers in teh cable must beusable and meet required specifications. 1.2 Each optical fiber shall be sufficiently free of surface imperfection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout the need for ripcords. The tear feature shall open only when the sheath halves are pulled apert at end of the sheath or a mid-span ring-cut opening. The tear feature shall not open during handling, installation, or operation 3.14 The tear feature shall be indicated by lobes in the outer sheath, as seen in figure 1. 3.15 All tensile strength shall be provided by the central member. 3.16. Cables shall be sheathed with high density polyethylene (HDPE). The nominal. jacket thickness shall be 0.5mm. Jacketing material shall be applied directly over a cable core thin-film blinder. 3.17 The HDPE jacket material shall be as defined by ASRM D1248. Type III, Class, D, Category 3 and Grade J4. 3.18 The jacket or sheath shall be free of holes, splits, and blisters" In all this litrature, from the website of Coming, produced by Learned AR only the plastic MDPE or HDPE layer has been described as 'sheath' and not the 'Dual Acrylic Coating. Thus in trade parlance too there is no mention of the '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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion 'Optical-Fiber Coating' has been explained as "a protective material bonded to an optical fiber, over the cladding if any, to preserve fiber strength and inhibit cabling losses, by providing protection against mechanical damage, protection against moisture and debilitating environments, compatibility with fiber and cable manufacture, and compatibility with the jacketing process. Coatings include fluorpolymers, Teflon, Kynar, polyurethane, and many others E'. In the website Answers.Com, fiber optics glossary, the word 'coating' has been taken to mean "a protective layer applied over the fiber cladding during the drawing process to protect it from the environment." we think there is no need to multiply the references to drive home the point that 'coating' is not treated as 'sheathing' either in ordinary sense or in the scientific/technical field, (emphasis supplied) In support of their 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 Explana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; Article downloaded from the website: everything2.com 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 or to contact authors.' There is no mention of the qualification of the said author 'Rancid Pickle'. Such an post has no value whatsoever and cannot be relied upon as authentic 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not been show as to what was the tariff heading at the material time. The HSN explanatory notes applicable to Indian Tariff are different and do not specifically include these goods and do not describe thedual acrylic coating a sheath. Moreover it describes the product as 'optical fibre cable, designed for example for telecommunication use, made up of optical fibres individually coated with dual layer of acrylate Polymer placed in a protective casing.' The fact that the fibre has to be in 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 dr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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