Page 240 - ELT_1st August 2020_Vol 373_Part 3

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that said goods are appropriately classifiable under Heading 9001 of Customs
Tariff Act, 1975 and not under Heading 8544 of Customs Tariff Act, 1975 - Or-
dered accordingly. [para 3]
Confiscation and Penalty - Classification issue - Since issue relates to
issue of classification of imported Optical Fibre Cables and no facts have been
suppressed nor misdeclared while claiming classification, confiscation and
penalty not sustainable - Sections 111 and 112 of Customs Act, 1962. [paras 4, 5]
Appeals partly allowed
CASES CITED
Commissioner v. Vodafone Essar Gujarat Ltd. — 2016 (331) E.L.T. A139 (Tribunal)
— Referred ......................................................................................................................................... [Para 2]
Commissioner v. Vodafone Essar Gujarat Ltd. — 2018 (360) E.L.T. A193 (Tribunal - LB)
— Relied on .................................................................................................................................. [Paras 2, 6]
REPRESENTED BY : Mrs. P. Vinitha Sekhar, Joint Commissioner (AR),
for the Assessee.
Shri T. Viswanathan, Advocate, for the Department.
[Order per : D.M. Misra, Member (J)]. - All these appeals listed are filed
by the assessee as well as Revenue. Since involved common issue, they are heard
together and being disposed.
2. The short issue involved in these appeals relate to whether the Opti-
cal Fiber Cable imported by the appellants and used in telecommunication merit
classification under Customs Tariff Heading 8549 and eligible to benefit of ex-
emption under Notification No. 20/2005-Cus., dated 1-3-2005 or the classification
of the said cable is under Tariff Heading 9001 of Customs Tariff Act, 1975 attract-
ing Customs duty @ 10% under Notification No. 21/2002-Cus., dated 1-3-2002.
Recording conflict views on the subject, the matter was referred to Larger Bench
of this Tribunal vide Order No. M/5336/2015/CB, dated 2-12-2015 [2016 (331)
E.L.T. A139 (Tri. - Ahmd.)]. After analyzing the issue in detail, the Larger Bench
of this Tribunal vide interim Order No. 7-23/2017, dated 22-11-2017 [2018 (360)
E.L.T. A193 (Tri. - LB)] answering the reference observed as follows :-
“6. In these circumstances, the reference is answered as follows :-
‘Optical Fibre Cables (OFC) imported by Vodafone Group of Com-
panies and used in Telecommunication are not classifiable under
Customs Tariff Heading 8544 and they would fall under Customs
Tariff Heading 9001’.”
3. Learned Advocate Shri T. Viswanathan for the assessee appellants
submits that the issue has been decided against the assessee. However, he vehe-
mently argued that since the issue relates to interpretation of the relevant entries
under the Customs Tariff Act, no mala fide intention could be attributed in declar-
ing the classification under Heading 8544 of the Customs Tariff Act, 1975. Con-
sequently, the imposition of penalty and confiscation of the goods as directed in
Appeal Nos. C/54 & 55/2010 is unwarranted and hence liable to be set aside.
4. Per contra, the Learned AR for the Revenue fairly submits that since
the issue has been referred to Larger Bench for resolution of conflicting views,
therefore, the issue is one of interpretation of law.
5. Heard both sides and perused the records.
6. As far as classification of the Optical Fibre Cables imported by the

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