TaxTMI 
TaxTMI 
2025 (1) TMI 795
X X X X Extracts X X X X
X X X X Extracts X X X X
....ound Wire Fibre Cable (OPGW) and its accessories. They were classified under the Customs Tariff Heading 8544 and the accessories under CTH 853670 respectively. Exemption was claimed under Notification No. 24/2005-Cus dated 1.3.2005. The Ld. Adjudicating Authority rejected the classification and denied the benefit of the Notification and ordered that the subject goods and its accessories be classified under CTH 9001 and heading 7616 respectively. Aggrieved by the said order, the appellant filed an appeal before the Ld. Appellate Authority who vide the impugned order rejected the appeal and upheld the adjudication order. Hence this appeal. 3. Shri Shride Vyas, Ld. Advocate appeared for the appellant and Smt. Anandalakshmi Ganeshram, Ld. Auth....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l sheathed fibre or not. He submitted that the question of use or function becomes irrelevant when the heading itself provides for the basis of classification. The question of technical literature or information available in public domain will have little or no consequences unless it is shown that all OPGW products have the same characteristics and features. He stated that in the absence of test results, the contention of the appellant is required to be accepted and the product is therefore to be classified under chapter 85 and their appeal is required to be allowed, with consequential relief. 3.2 The Ld. Authorized Representative submitted that the LAA has, based on the technical, commercial and legal literature clearly demonstrated that ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... involved is the classification of imported Optical Power Ground Wire Fibre Cable. 5. As per the Hon'ble Supreme Court's decision in Union of India Vs Garware Nylons Ltd. reported in 1996 (87) E.L.T. 12 (S.C.), the burden of proof is on the taxing authorities to show that the particular case or item in question, is taxable in the manner claimed by them. [Also see: Commissioner of Central Excise, Nagpur Vs Vicco Laboratories - 2005 (179) E.L.T. 17 (S.C.)]. 6. The background for this classification dispute appears to stem from Boards instruction contained in Circular 12/2006-Cus dated 28/02/2006 issued from F No 528/8/2006-Cus(TU), on the subject of mis-classification of 'optical fibre cables' under heading 8544 instead of heading 9001. The....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... use. 8. Without there being clarity on the factual nature and characteristics of the product, the eloquence of the discussion and findings in the impugned order will not suffice. The matter is also mysterious as the appellant has repeatedly stressed, before the Original Authority, that a sample was drawn at the time of import and a copy of the test report may be provided but has been met with stony silence. This aspect is fatal to the case of revenue. 9. The Commissioner Appeals in the impugned order has accepted inferior proof by taking a fallacious argument that since catalogues of OPGW's were available in the public domain, testing can be waived, and the available material facts were enough to decide the classification. He has not dem....