TaxTMI 
TaxTMI 
2018 (1) TMI 959
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....ion No.21/2002-Cus dated 01/03/2002?" 2. The 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" ....
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....applied in two layers (two times) each, of a different Young's modulus. The inner layer is somewhat softer than the outer one. This is to protect the fibre against micro-bending 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 othe....
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....5 mm), twisted together. A cable core consists of a single pair or a quad or multiple stranded pairs or quads. 2.3.3. Learned counsel pointed out that the following 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 o....
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....al Rules for the interpretation of the Harmonised System and all the Section, Chapter and Subheading Notes, and shall not modify the scope of the Sections, Chapters, headings 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, relie....
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....per telecommunication cable were specifically mentioned in the explanatory notes of BTN to Heading 85.23, the Copper telecommunication cable continued 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 opt....
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.... is not covered by second leg of Heading 9001 relating to optic fibre bundles. He pointed out that the fibres are agglomerated by a binder 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 Head....
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....C). 2.11.2. Learned counsel also referred to the decision Commissioner of Customs Vs. C-Net Communication (I) 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. H....
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....evant portion of the decision is reproduced as under: "22. At the risk of repetition, 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 co....
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....cription of sub heading is specific, such product will fall there 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 o....
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....an Telecommunications are never 'coated' (para 10.3 of 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 fi....
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....tions Generic Specification for Outside Plant 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) ....
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....ne 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 of above evidence a. There cannot be ....
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....es, 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 stated that the acrylate coating is a transparent polymer. (v) Learned AR argu....
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....rengthen 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 glass which are enclosed by a protective sheath. He argued that it does not say that the UV cured Acrylate c....
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....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 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 wa....
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....ables 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. 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....
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....ecourse 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, 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....
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....tes 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 sheath has deteriorated). 56.04, 78.06 The term 'Sheathed' has been used in the following manner in the HSN and Tariff 40.10 This heading covers conveyor or transmissions belts and belting, wholly of vulcanised rubber, or of textile fabric impregnated, coated, covered or laminated with 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. ....
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.... 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 belting of textile fabric impregnated, coated, covered or laminated with rubber or made from textile yarn or cord impregnated, coated, covered or sheathed with rubber (heading 40.10, see Note 6 (b) to this Chapter). In so many places in the tariff (like heading 40.10, 56.04, 56.07, General explanatory notwes to chapter 46, Chapter note 2 to chapter 59 etc) the expression used to describe the products is 'impregnated, coated, covered or sheathed'. Simultaneous use of these words makes it clear that the term 'Sheathed' has been used in contrast with the term 'impregnated', 'coated' or 'covered'. It is apparent the term coating and sheathing have different meaning in the tariff. In fact the term 'sheath' has been used to describe separate object as can be seen from the table 4.3.1 above. It is seen that the expression used in many places is 'encased in rigid sheath', 'encased in sheath', &#....
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....ed'. 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 'The heading covers, inter alia: ....... (3) Telecommunications wires and cables (including submarine cables and data transmission wires and cables) are generally made up of a pair, a quad or a cable core, the whole usually covered with a sheath, A pair or a quad consist of two or four insulated wires, respectively (each wire is made up of a single copper conductor insulated with a coloured material of plastics having a thickness not exceeding 0.5 mm), twisted together. A cable core consists of a single pair or a quad or multiple stranded pairs or quads.' It is apparent that the aforesaid expression covers telecommunication wires and cables (containing wires). If the intention was to cover all the telecommunication cables then the HSN would have stated so and the heading also would have stated so. The tariff makes distinction between the heading 85.44 and 90.01, not on the bases of use but on the basis of construction of the optical fibre cables. Only those OFC's w....
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....ns 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 sheathed fibres' and are used for telecommunication would fall under the heading 85.44. It is also not the case of the appellant that OFC consisting of 'fibres not individually sheathed' if used for purposes like endoscopy would be classifiable under heading 85.44. It is apparent that the classification is solely based on the manner the fibres are sheathed. These general observation regarding use of the optical fibre cables, in the explanatory notes are not relevant for the purpose of classification. The only relevant fact is if the fibres are individually sheathed or not. 4.3.3. The appellants have argued that the 'Dual Acrylic coating' is a feature of only the long distance telecommunication cable. In this regard the 'Glossary of terms' on the website of Corning describes 'Fibre Optics' as follows. Fiber Optics Fiber optic lines are strands of optically pure glass as thin as a human hair that can carry transmitted information via light pu....
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.... the so called 'ruling' are not Known. As against this, the tribunal in the case of Reliance Communication Infrastructure Ltd. (Supra) has agreed with the detailed findings of Authority for Advance Ruling (AAR). AAR is an statutory body headed by a Retired Judge of the Hon Apex Court of India. Moreover it is seen that the said document called cross ruling dated 16^th July 2003 the company that sought clarification, namely Corning Cable System, has argued that the dual acrylic coating does not amount to 'Individual Sheathing' of fibres. Thus apparantly the supplier of these cables had taken contrary stand before the said authorities in US. The appellants have relied on the decision of Hon'ble Supreme Court in CC v. GM. Exports, 2015 (324) ELT 209 (SC) to assert that reliance can be placed on such a ruling. It is seen that in the para 23 has been relied by the appellant in their submissions. The Hon Supreme Court had observed as follows:- "23. A conspectus of the aforesaid authorities would lead to the following conclusions : (1) Article 51(c) of the Constitution of India is a Directive Principle of State Policy which states that the State shall ....
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....6 by M/s. Prysmian Wuzi Cable Co. Ltd., China b) Opinion by President Corning India on behalf of M/s. Corning Cables Systems Learned AR has argued that the said opinion is a manufactured opinion. He argued that the opinion is totally unreliable because, M/s Coming Ltd. have themselves been claiming before the USA, Customs Dept that their Loose Tube Cables do not have individually sheathed fibres because the tube is the sheath (cross ruling dated 16^th July 2003). Moreover the appellants had themselves sent a draft opinion to send the M/s Coming Ltd. and to M/s. Prysmian Wuzi Cable Co. Ltd., China. He argued that M/s. Prysmian Wuzi Cable Co. Ltd., China have simply echoed the draft opinion sent by the appellants. He also pointed out that the opinion of M/s Corning Ltd. is given by the President Corning India. He pointed out that the President Corning India, has simply signed on the draft opinion itself sought by the appellants. It is seen that the said opinion was obtained by writing a letter to M/s. Prysmian Wuzi Cable Co. Ltd., China and M/s Corning Ltd. wherein a draft opinion was sent to them. The draft opinion was agreed to by the foreign supplier. This cannot be treated ....
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....ing 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 and cannot be relied upon. (ii) The appellants have also relied on the relevant text on Basics of Fibre optic Gyros by Wolff Data (From website www.wolfdata.se) which states that optical fibre cable consists of core and the cladding which is enclosed by a protective sheath. The said text clearly says that the 'core and the cladding which is enclosed by a protective sheath'. It clearly means that the sheath is not a coating. (iii) The appellants have also relied on relevant extract on "optical fibre" by Pirelli which states that optical fibres for telecommunications are single-mode fibres. Typically, these are characterized by a guiding nucleus of roughly 10 mm in diameter and an index jump of 0.1%. The diameter of the sheath is standardized at 125 mm. Leamed AR objected to the article on the ground that the fibres under consideration are of the scale of microns and not in the scale of millimetres as claimed. We find that ass....
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....10. To appreciate the trade understanding of the term 'Sheath' it is necessary to examine the trade litrature relied by both sides. 4.10.1. One way to appreciate the meaning of the word sheath is to see the manner in which the manufacturer uses the term 'Sheath'. The website of the manufacturer has been cited by both the parties. Leamed AR has specifically relied on the glossary of terms on the said website. Glossary of Terms at the website of Corning appearing in the following link. https://www.corning.com/in/en/products/communication- networks/resources/glossary-of-terms.html#go_to_T The word sheath appears intwo terms described in the said glossay. In both of these terms the sheath is referred to as the outer plastic covering of the cable. It also clarifies that the said sheath could be on a single fibre or on multiple fibres. There is no reference to the dual acrylic coating as sheath in the said glossary. 4.10.2. The following link on the website of corning describes the procedure of Sheath Removal and Mid-Span Access of Dielectric ALTOS@ Cable with FastAccess^TM Technology. http://cablesystems.corning.com/rs/corningcablesystemsllc/im ag....
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.... cables, the minimum nominal jacket thickness for the inner sheath shall be 1.0 mm. The inner jacket shall be applied directly over the water swellable tape and cable core. A water swellable tape shall be applied longitudinally around the outside of the inner jacket. The armor shall be a corrugated steel tape, plastic-coated on both sides for corrosion resistance, and shall be applied around the outside of the inner jacket. The armor shall be a corrugated steel tape, plastic-coated on both sides for corrosion ressistance, and shall be applied around the outside of the water blocking tape with an overlapping seam with the corrugations in register. The outer jacket shall be applied over teh corrugated steel tape armor. The outer jacket shall be a MDPE with a minimum nominal jacket thickness of 1.3mm. For reduced diameter (RD) cables, the minimum nominal jacket thickness shall be 1.4 mm. The polyethylene shall contain carbon black to provide ultraviolet light protection and shall not promote the growth of fungus. See figure 3 c. From item (c) in the list in para 3.3 above pertaining to Corning Optical Communications Generic Specification for Outside Plant Gel Filled Loose Tube Opti....
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....t in use; b A case or covering with a similar function or purpose; 4a A thin-walled, hollow part of a device or mechanism which surrounds another part. Coating - 3. A layer of any substance, as paint, tin, etc., spread over or covering a surface; Chambers Dictionary of Science and Technology Sheath (ElecEng) The covering of a cable. Coating (ElecEng) - The metallic sheets or films forming the plates of a capacitor; The New Oxford American Dictionary Sheath A close-fitting cover for something, esp. something that is elongated in shape, in particular; A cover for the blade of a knife or sword; A protective covering around an electric cable. Coating - a thin layer or covering of something : a coating of paint.. McGraw-Hill - Dictionary of scientific and Technical Terms - Fifth Edition Sheath [ELEC] A protective outside covering on a cable. [..... ELECTROMAG] The metal wall of a waveguide. [SCI TECH] A protective case or cover Coating -1. Any material that will form a continuous film over a surface. 2. The film formed by the material. From the above, it is dear that as is understood and perceived not only ....
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....cladding of an optical fibre, becomes a 'sheath', notwithstanding their common protective purpose." 4.11.1. We find that there is substantial force in the arguments of the AAR approved by the tribunal. In view of above the Dictionary meaning also does not support the argument of the appellants. 5. In paras above we have examined the meaning of the term' Sheath'/'Sheathed' with reference to a) the Dictionary meaning, b) the Trade understanding and c) the HSN and tariff In view of the above, the litrature and other evidence relied upon by the referral bench and also produced by both the parties during this hearing does not establish that the 'dual acrylic coating' results in 'individually sheathed fibre'. The specific items of evidence relied upon by the referral bench are examined in following table. Observation of referral bench Technical Literature relied by referral bench Observations of this bench 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" The s....
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....m the book "Mastering Optics by John Blackwell and Shane Thornton" produced by appellants and design of Optic fiber and Light from the book "introduction to Fiber optics by John Crisp" shows that there is no reference of dual acrylic coating being "sheath'' It merely says that a fibre consists of a core, cladding and sheath. In fact it does not distinguish the fibre used for telecommunication from the others. The structure of all optical fibres is described as core, clad and sheath. The fact is that heading 90.01 is not limited to bundles only. The heading covers all the OFC's where the fibres are not individually sheathed. Thus the reference to these article regarding coherent/incoherent bundles is not relevant. Relevant extract on design of Optic fiber and Light from the book "Introduction to Fiber 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, the latter being coated by a layer of v....
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....d upon. It is seen that the said opinion was obtained by writing a letter to M/s. Corning Cables Systems, Australia wherein a draft opinion was enclosed. The draft opinion itself was signed by the President Corning India, and sent back to appellant. 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 is merely approval of the draft opinion sent by appellants to the foreign supplier, by the president of its Indian operations. It is not known as to how competent the president of its Indian operations is to give such an opinion on technical matters. Certificate from the Department of Electrical Communication Engineering, Institute of Science, Bangalore The said certificate is in respect of a test sample which has not been described. It does not state that the said sample is coated. with dual acrylic coating. It merely says that the fibres are individua sheathed. The opinion is totally irrelevant to the facts of this case. 6. In these circumstances the reference is answered as follow: 'Optical Fibre Cables (OFC in short) imported by Vodafon....