ORDER
P.C. Jain, Member (T)
1. Briefly stated the facts of the case are as follows :-
2. The appellant herein imported a part described as ‘regulating sensor’. They cleared the same on payment of duty. Later on they filed claim for excess duty paid by them. They claimed the benefit of Notification No. 172/89-Cus. in their refund application claiming that the goods are assessable under Tariff Heading 90.33. The said application was rejected by the original authority namely the Assistant Commissioner of Central Excise, Division Ujjain, who is having the jurisdiction over the warehouse where the goods after importation were deposited after warehousing. The said Asst. Collector held that the part being a part of Texturing machine is not covered under Tariff Heading 90.33.
2. Apart from the said finding, the Assistant Collector rejected the refund claim on the ground that the burden of incidence of duty is deemed to have been passed on to the consumers when the goods, as part of texturing machine, are used in the manufacture of other goods inasmuch as texturing machine was used in manufacture of those other goods.
3. On appeal, the appellants herein did not succeed. However in addition to the pleas taken by the appellants before the original authority, the appellants made an alternative plea before the lower appellate authority stating that the said part would fall under Tariff sub-heading 8448.20, being part of Texturing machine falling under Tariff Heading 84.44. This plea of the appellants has not been considered by the lower appellate authority except by saying as follows:
“Regarding the change of classification of the item under Chapter Heading 8448.20 at the appeal stage, it is neither appropriate nor desirable. Moreover, the classification already done appears, prima facie, to be in order.
Hence this appeal before the Tribunal.
4. Ld. Advocate Shri Asim Mehrotra, has submitted that the lower appellate authority has not adequately considered the alternative submission in respect of classification of the part in question made before the said authority during the course of personal hearing. In this connection he has drawn our attention to the record of personal hearing available at page 12 of the appeal papers. After having heard the ld. JDR we observe that this plea of the appellants is well founded. The lower authority has dismissed this plea for alternative classification and consequently the benefit of the said notification under Sl. No. 35 of the table by stating that change of classification of the item is neither appropriate nor desirable. We are unable to understand the said finding of the lower appellate authority. Question of classification is a question of law is a fairly well settled proposition and it can be taken at any stage so long as the facts available on record are sufficient. It has been admitted by the original authority that the part in question is a part of texturing machine. Texturing machine is prima facie classifiable under Tariff Heading 84.44. Therefore, it was very necessary for the lower appellate authority to consider that plea and then come to a conclusion whether the alternate plea taken by the appellants is correct or not. We are therefore, of the view that the matter is fit for remand. Hence we set aside the impugned order and direct the Commissioner (Appeals) Central Excise, Bhopal to re-adjudicate in the light of the aforesaid observations.
5. Before we part with this order, other plea regarding rejection of refund claim of the appellants on the ground of unjust enrichment, we are of the view that the finding made by the lower authority is not correct inasmuch as it is admitted to the Revenue Authorities that the part in question has been used by the appellants in their own machines and not further sold to the customer. Therefore, relying on Bombay High Court judgment in the case of Solar Pesticides reported in 1992 (57) E.L.T. 201 the doctrine of unjust enrichment cannot be applied to the present case. This view is being consistently taken by the Tribunal following the aforesaid judgment of the Bombay High Court; an example of it has been given by the ld. Advocate on such a view having been taken by the Tribunal in the case of Vardhman Spg. & General Mills reported in 1993 (68) E.L.T. 919.