TMI Blog2004 (2) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs. They claimed classification of the goods manufactured by them under sub-heading 5703.20 of the Central Excise Tariff Act, 1985. Goods under that sub-heading were exempt. However, Commissioner of Central Excise held under his order, dated 6-1-1998 that the goods are correctly classifiable under sub-heading 5303.90. Goods under that heading were dutiable. The appellant challenged the classifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame before and after re-classification/revaluation, the question of unjust enrichment cannot arise [1995 (80) E.L.T. 410 - Collector of Central Excise v. Metro Tyres Ltd.] and [ITC Bhadrachalam Paperboards Ltd. v. CCE, Hyderabad - 2002 (146) E.L.T. 582] etc. In addition, the learned Counsel has drawn our attention to the factual position noted in Para 3(e) of the order in appeal that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is being done since we are proposing to file appeal against the aforesaid order in original and in the event of Tribunal deciding the matter in our favour we would be claiming refund of duty paid from the period now onwards. (emphasis added). The letter, dated 27-1-1998 stated as under :- "Also please find herewith declaration under sub-rule 3A of Rule 173C. Please also note that we will be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty amounts passed on to buyers of the goods. Since that has not happened in the present case, the bar of unjust enrichment did not apply to the appellants' claim. The finding to the contrary by the lower authorities is contrary to facts and is not sustainable. 5. In the view we have taken above, the impugned order is set aside and the appeal is allowed. The lower authorities shall refund the exc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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