Customs, Excise and Gold Tribunal - Delhi
Optel Telecommunications Ltd. vs Commissioner Of C. Ex. on 9 November, 2004
Equivalent citations: 2005(180)ELT63(TRI-DEL)
ORDER
S.S. Kang, Vice-President
1. Heard both sides. The applicant filed this application for waiver of pre-deposit of duty approximately Rs. 19 crores and penalty of Rs. 5 crores.
2. In this case demand is confirmed by classifying the product manufactured by the applicants under Heading 85.44 whereas appellant claimed the same under Heading 90.01 of Central Excise Tariff.
3. The Heading 85.44 of Tariff covers optical fibre and cables made up of individually sheathed fibre whether or not assembled with electric conductors. Whereas the Heading 90.01 of Central Excise Tariff covers optical fibre cables other than those Heading 85.44 of Tariff, the manufacturing process as explained by the appellant is as under :
"The manufacturing process in first step consists of obtaining pre-form either by MCVD process or FVD process. The pre-form so obtained is then drawn into fibre. The thickness of the bone fibre is mentioned and a thin coating of UV-cured acrylate simultaneously applied to it. The fibres so drawn are then coloured for identification purpose and in pair of two (one coloured and one with natural colour) are placed in loose tube filed with jelly. These loose tubes (3 Nos. or 6 Nos.) along with filler PE cord are then standard around FRP Centre Tension Member to form the core of the cable. Jelly is applied during the core manufacturing stage and a polyester film is wrapped around the core which is held in place by PE tape. These loose tube cores are then sheathed with black IDPE and to provide extra strength to cable it is provided suitable nylon jacketing."
4. The contention of the appellant is that the adjudicating authority in the adjudication order specifically mentioned that the fibre of cables in dispute are separately sheathed in pairs. In view of this finding, the cables cannot be classified under Heading 85.44 of Central Excise Tariff.
5. The contention of the Revenue is that as the cables are sheathed separately in pairs and as per the dictionary meaning of word 'individually' also included separately, therefore, they are rightly classifiable under Heading 90.01 (sic) of Central Excise Tariff.
6. Prima facie, we find that in view of the finding of the adjudicating authority, where it has been held that the cables are separately sheathed in pairs, we find strong case in favour of the applicants. Therefore, pre-deposit of whole of the duty and penalty is waived for hearing of the appeal. Adjourned to 21-12-2004 for arguments.