TaxTMI 
TaxTMI 
2026 (1) TMI 1100
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....g to know as to why penalty should not imposed on them. The appellants filed their detailed reply stating that they have been classifying the goods under CTH 8544 70 90 right from 2012 onwards. Their earlier consignment was duly tested by Electronics Regional Test Laboratory (EAST) and Test Report was issued by them on 10/01/2014. Based on this Test Report, the Department accepted the classification as CTH 85447090 vide their letter dated 18/06/2015. In the case of the subsequent imports during the period 16/06/2016 to 11/06/2021 also the same goods were imported and hence they had correctly classified the goods under CTH 8544 70 90. They also contested the issue on limitation. After due process, the Adjudicating Authority vide the impugned order, has dropped the demand to the extent of Rs.2,23,22,087/- in respect of the imports done during the period 16/6/2016 to 10/06/2019 on the ground that there was no suppression on the part of the appellant. On account of limitation, this portion of the demand was dropped. However, he has confirmed the demand in respect of the two Bills of Entry, for the imports done during the period 11/06/2019 to 11/06/2021 confirming the demand of Rs. 14,8....
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.... get classified under CTH 9001 00 00 (as contended by Revenue) or under CTH 8544 70 90 (as contended by the importer) has been subject of litigation for many years right from the year 2006 onwards. We find that vide Circular No. 12/2006-Cus dated 28/02/2006, clarification/instructions were issued by CBEC for arriving at the correct classification of the goods in question. Further, this issue has been litigated at various levels by various importers. In view of different views taken by different coordinate Benches of the Tribunal, the issue reached the Larger Bench in the case of Commissioner of Customs (Import) Mumbai Vs. Vodafone Essar Gujarat Ltd. The Larger Bench vide Order No. I/07-23/2017/LB dated 22/11/2017 has held that the goods in question would be classifiable under CTH 9001 00 00. Against this Larger Bench decision, the importer filed an appeal before the Hon'ble Supreme Court. The Hon'ble Apex Court vide their Order dated 11.06.2020. in CEA No. 3501 of 2020, [2020 (373) ELT A93 (SC)] has admitted the appeal and also granted interim Stay of the impugned LB Order subject to certain conditions. This shows that even as on date, the issue of classification of the impugned go....
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....he Revenue. Therefore, the Learned Counsel submits that for all practical purposes, the classification and related issues are settled in favor of the appellant in their own case as on date. The decision of the Larger Bench holding that the product will fall under CTH 9001 00 00, cited by the Ld A R, stands stayed by the Hon'ble Supreme Court. (ii) The Ld Counsel submits that as per the above factual details, the appellant had the support of the Test Report clearly in their favor which had attained finality since no appeal was filed by the Revenue against the Test results. On the other hand, for initiating the present proceedings, the Department has not drawn any sample in any of the consignments imported during the period 11/06/2019 to 11/06/2021. Therefore, the Department does not have any evidence in the form of any Test Report confirming that the product will fall under CTH 9001 00 00. The Show Cause Notice has relied on the letter dated 17/06/2020 issued by ADJ (Transmission) Tech, New Delhi to highlight that "in higher count OPGW cable, the fibres are not individually sheathed but the bundles of optical fibres are sheathed together with sheathing material", which is a....
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.... I am directed to invite your attention to the representation of domestic manufacturers of fibre optic cables wherein they have stated that import of cables of sub-heading 9001 10 are mis-declared or mis-classified as products of Heading 8544. 2. The issue of classification of optical fibre cables was examined by the Board. The Board felt that heading Nos. 8544 and 9001, read with exclusions specified in Chapter Note 1(h) to Chapter 90 of the First Schedule to the Customs Tariff Act and Explanatory Notes of Harmonized Commodity Description and Coding System (HSN), cover mutually exclusive category of optical fibre cables under their respective headings. These are distinguishable in that the optical fibre cables of Heading 8544 are made up of individually sheathed fibres, whereas cables of Heading 9001 are not individually sheathed and specifically exclude products of 8544. 3. Further Board also noted certain importers may mis-declare the optical fibre cables of Heading 9001 under Heading 8544 to avail lower rate of duty applicable to Information Technology Agreement (ITA-1) bound items. In order to check such mis-classification/mis-declaration of optical ....
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....t the result. Having accepted the Test Report and processed the finalization of the Bills of Entry based on the same more than 7 years back, we do not see the reason for revisiting the same after so many years. Prima facie it appears that after about 4 years from the date of decision of LB in the case of Vodafone [Order No. I/07-23/2017/LB dated 22/11/2017], Revenue suddenly became wiser and invoked the extended period provisions and initiated the present proceeding in a hurried way without having drawn any sample for the past consignments. The Board Circular dated 28.02.2006 clarifies that necessary verification is required to be taken up in each and every case to come to the correct conclusion about the classification. Even as the Board Circular is not binding on the assessee, it is very much binding on the Revenue, so long as it does not run contrary to any HC/SC decision. Therefore, non-drawal of samples and testing the same proves fatal to the case of the Revenue in the present proceedings. 16. We note that the LB decision of Vodafone has held that goods are classifiable under CTH 9001 00 00 which has been stayed and the issue is sub-judice before the Supreme Court. Therefo....
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....ntly. 21. The Tribunal in the case of Shalimar Paints Ltd. v. Commissioner -- 2001 (134) E.L.T. 285 (Tribunal), has held as under : "7. The first grievance of the appellant is that though the classification lists in question covered about 30 products, test reports relatable to only 4 products are available and there is absolutely no material against the appellant in so far as the remaining 26 products are concerned. He submits that presuming though denying that the test reports of CRCL are correct, the same can be made the basis for classifying only those products to which the test report relates. The same cannot be made applicable to the other items for which no samples were either drawn or if samples were drawn, there is no test report. For this proposition he relied upon the Tribunal's decision in the case of S.D. Kemexc Indus. v. CCE - 1995 (75) E.L.T. 377. In the said decision assessee was manufacturing 22 different types of chemicals. The Department drew samples only from two types of chemicals. It was held that test reports can be made applicable only for the two products for which the samples were drawn and not to the rest of the products. Following the rati....
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....aw. 25. We would like to make it once again clear that in the present appeal filed by the importer, we have not taken any view as to what would be the correct classification of the goods in question. The importer's Appeal has been allowed only based on the detailed discussions and analysis done in the preceding paragraphs. (Pronounced in the open court on 20.01.2026.) ============= Document 1 65. Government of India Ministry of Communications and Information Technology Department of Electronics & Information Technology, Standardisation Testing & Quality Certification Directorate ELECTRONICS REGIONAL TEST LABORATORY (EAST) . ® TEST REPORT ON FIBER OPTIC CABLE PAGE 01 OF 04 1.0 SCOPE 1.1 Service Request No. : TE/0103/11-13 1.2 Test Report No. ERTL(EVTES/0102/0019/12-13 Date: 10/01/2014 1.3 Requested by OFFICE OF THE COMMISSIONER OF CUSTOMS ( Name & Address " 15/1, STRAND ROAD of the organisation) CUSTOMS HOUSE KOLKATA 700 001. WB 1.4 Description . Item " FIBER OPTIC CABLE of the Identification item Make NIE 4 to be tested Model NIL SI,No. Qty. 1 CUSTOMS HOUSE KOLKATA 700 001. Identification ....
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.... cable have been made up fiber of . idividually sheathed optical fiber cables Whether the goods are fiber cables, it is a 24 ( 4 x 6 = 24 ) core fher cable .. Yes, goods are oplicai is not given as it is a requirement analysis job only. Test result provided. Pass/Fall decession Whether the goods are Yes, goods are oplicai Pass/Fall decession Whether the goods been manufactured by process in which " the fibres are coated with differentjelly colours and 'are housed In jelly material which would amount: . 1d "individually sheathing the fiber "." havelYes, processed individual ajfibres coated in 6 different colcucs and are housed in like material. There! are such 4 jelly filled cables (each have 6 core] fibers cable) contained in a metallle tube which are armoured by alluminium rods, So.it is a 24 ( 4 x 6 =) 24 ) core fiber-cable In particular , whether the optical cables are made optical fibres which have individually protective sheath made of resin (also) described as coating J". Individual oficoating sheath on each "fibercore provided protective Whether these optical fibre cab....