ORDER
K.S. Venkataramani, Member (T)
1. This appeal is directed against the order dated 8-1-1992 passed by the Commissioner of Central Excise (Appeals), Chandigarh. The appellants herein manufacture bars and rods. However, this products were classified by the department as the hoops and flats and the appellants accordingly paid the higher duty on the goods as classified by the department and filed a claim for refund on 31-10-1988 for an amount of Rs. 4,33,471.38 on the duty paid during the period 1-4-1988 to 30-9-1988. This refund claim rejected by the Assistant Commissioner who held that the appellants had paid duty correctly as per approved classification list which were for hoops and flats only. The Assistant Commissioner’s order was challenged in order-in-appeal. The Commissioner (Appeals) in the impugned order held that the matter regarding classification has been decided by the Tribunal in the case of Calcutta Steel Industries v. Collector of Central Excise, reported in 1991 (54) E.L.T. 90 (Tribunal) wherein it was held that the products as that produced by the appellants would be correctly classifiable as bars. The Commissioner (Appeals) after so holding went a step further and observed in respect of the refund claim that the appellants have collected the duty from their customers and no evidence has been adduced by them to prove that the same has not been passed on to the customers and on this ground rejected “the claim.
2. Shri G.S. Bhangoo, the learned Counsel contended that this was a totally new ground taken by the Commissioner (Appeals) which were not at all a point adverted to be in the order of the Assistant Commissioner’s order and at the material time of the Assistant Commissioner’s order, the concept of unjust enrichment had not been incorporated in Section 11B of Central Excise Act, 1944 relating to refund but the appellants have also were never given an opportunity to show whether the burden was passed an order not in the manner in which the Commissioner (Appeals) has taken up this ground and dismissed their appeal. On hearing Shri Mewa Singh, the learned Senior Departmental Representative we are of the view that the Commissioner (Appeals) ought to have in the circumstances remanded the matter to the Assistant Commissioner instead of making an observation that no evidence has been produced by the appellants regarding shifting of the burden. It is not on record whether this new ground was put to the appellants at appeal stage. No doubt in 1992 when the order appeal came to be passed the retrospective amendment under Section 11B incorporating the concept of unjust enrichment was in force and the law now stands settled that amended provisions whereof will be applicable to all pending cases of refund. In such a situation, the proper disposal of this appeal would require a remand on the aspect of unjust enrichment. Accordingly, we set aside the impugned order so far as it relates to the rejection of refund claim on the ground of unjust enrichment and we remand this aspect of the case to the jurisdictional Assistant Commissioner to deal with the claim in light of amended provisions of Section 11 B. The Assistant Commissioner should gave an opportunity to the appellants to show with satisfactorily evidence whether the duty burden has been passed on to the customers or not as required in terms of the amended provisions of the Section 11B of the Central Excise Act, 1944 read with Section 12D thereof. The appeal is disposed of accordingly.