Page 190 - ELT_1st July 2020_Vol 373_Part 1

100 EXCISE LAW TIMES [ Vol. 373

Cause Notice No. 184/94 is issued primarily to VIPI with VIPPL as a co-noticee.
The issue of classification was not a point of issue during the initial stages or in
both show cause notices. However, when this issue was contested before the Tri-
bunal, it has directed the Commissioner to examine this claim as well. Relying on
the expert opinion of a Chartered Engineer which they obtained, the appellants’
claim that the product CFC is classifiable under Chapter Heading 3403 and there-
fore it is fully exempted from payment of duty vide Notification No. 287/86,
dated 5-5-1986. Once the classification is decided in their favour, the demand
does not survive at all.
3. In the impugned order, the Learned Commissioner records that CFC
(also known as Splice Filling Compound) is classifiable under Chapter Heading
3823 and not 3403 as claimed by the appellants and therefore they are not enti-
tled to the benefit of Notification 287/86. We proceed to decide this issue of clas-
sification first as this has been the reason for earlier two rounds of litigation. The
assessee obtained an opinion of a Chartered Engineer dated 21-7-2010 which is
placed at Pgs. 37 to 43 of the paper book. Apart from the opinion, the assessees
themselves sent some questions to the Chartered Engineer and he answered
those questions in Paras 4 & 5 which are as follows :
“4. The product, namely, ‘Cable Filling Compound’ called also as splice
filling compound is used in jointing PIJF telephone cables. The method con-
sists of preparing both ends of the cables, cleaning the copper conductors,
making the joint or connectors crimping of the copper conductor ends, fit-
ting in the heat sinkable sleeves, filling the cable/splice filling compound,
and finally sealing thermally.
5. As per the specifications laid down by the DOT’S Research Unit, there
are over 12 type tests which the cable filling compound has to successfully
pass through. The whole purpose of these tests is to ensure that no water
ingress takes place into the joint irrespective of external weather conditions
and the normal hazards associated with cables buried in earth. And also the
compound should have electrical insulating and anti-aging properties. The
material should be easy to handle by technicians at site and should be
odourless and non-toxic. In effect the cable filling compound has to act as a
seal protecting the signal carrying wires at the cable joint from exposure to
various hazards.”
4. Based on this opinion of the Chartered Engineer the appellants claim
that the goods in question deserve to be classified as lubricating preparations/
preparations of a kind used for oil or grease treatment of textile materials etc.,
under Chapter Heading 3403.99. Learned Counsel for the appellants submits that
the expert opinion of the Chartered Engineer should have been accepted by the
Commissioner or he should have countered it by referring it to another expert in
the matter. Since he has not referred another expert, he is bound to accept the
Chartered Engineer’s certificate and the goods should have been classified under
Chapter Heading 3403 as claimed by them. On this point, Learned Departmental
Representative submits that the adjudicating authority has not in any way dis-
puted the Chartered Engineer’s certificate but has come to a conclusion regard-
ing the classification based on the report of the Chartered Engineer itself. He
draws the attention of the bench to Paras 15 to 20 of the impugned order which
reads as follows :

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