ORDER
Jyoti Balasundaram
1. The brief facts of the case are that the respondents herein failed a claim for refund of duty of Rs.9,46,419/- on 2.4.98 on the ground that they had supplied ERP windows to M/s.RCF, Kapurthala classifying the goods under CET sub-heading 3925.20 and paying duty at the rate of 25% adv., while the goods were classifiable under sub-heading 86.07 attracting duty at the rate of 18% adv. The refund claim which was filed on account of this difference of 7% was rejected by the Assistant Commissioner on the ground that the goods in question are of similar nature and meant for use in Railways as are aluminium doors and windows and that the classification issue of aluminum doors and windows is pending before the Tribunal and the Punjab & Haryana High court. He, however, gave the assessees the option to filed fresh refund claim as soon as the matter is finalised in Cegat/High Court. The Commissioner (Appeals) allowed the appeals of the assessees following the Tribunal’s decision that aluminum doors and windows fell for classification under CET sub-heading 8607.00, and noting that the assessees had withdrawn their writ petition before the High Court. The Revenue is in appeal on the ground that the aspect of unjust enrichment has not been considered by the authorities below. Learned D.R. prays that the matter may be sent back for fresh decision to examine whether the bar of unjust enrichment operate against the respondents. The prayer is opposed by the Learned Counsel, who submits that the grounds of unjust enrichment is not tenable as no show cause notice proposing denial of refund on the above ground had been issued, and in this connection he relies upon the Tribunal’s decision reported in 2001 (44) RLT 470 (CCE, Bhopal vs. Jabalpur Oxygen Co).
2.We have considered the rival submissions and perused the Tribunal’s order cited supra. We agree with the Learned D.R. that the Tribunal’s decision (supra) is distinguishable from the facts of the present case inasmuch as in the case of Jabalpur Oxygen Co. Commissioner (Appeals) considered the aspect of unjust enrichment, while in the present case, the Assistant Commissioner rejected the claim as pre-mature and neither authority considered the operation of the bar of unjust enrichment. In any event, the issue as to whether assessees have passed on duty burden to their customers requires to be examined in the light of the Apex Court decision in the case of Mafatlal Industries Ltd. Vs. Union of India 1997 (89) ELT 247 (S.C.). We, therefore, set aside the impugned order and remand the case of the Assistant Commissioner for fresh decision on the aspect of unjust enrichment. He shall pass fresh order after extending reasonable opportunity to the assessee of being heard and putting forth their defence.
3.The impugned order is thus set aside and the appeals allowed the remand.