P.G.CHACKO - (1.)The brief facts of the case are as under: - -
The appellants were engaged, during the material period, in the manufacture of "preparations containing snuff of tobacco in any proportion". During the period 9.9.91 to 27.2.94 the appellants were paying duty on the goods at the rate applicable to Central Excise Tariff Sub -heading 2404.50. They, later on, realised that their product was classifiable under CET Sub -heading 2404.60 attracting lower rate of duty. They filed a refund claim with the proper officer of the department on 13.5.94 seeking refund of the differential duty paid on the clearances for the above period. This claim was rejected by the original authority as per order dated 29.1.96. The appeal preferred by the party against the order of the original authority was rejected by the Commissioner (Appeals). Hence the present appeal.

(2.)Heard both sides.
(3.)Ld. counsel for the appellants submits that both the original and first appellate authorities rejected the refund claim on the grounds of limitation and unjust enrichment. With particular reference to the order of the original authority, Ld. counsel submits that the classification of the product held by this Tribunal under Sub -heading 2404.60 was not accepted by that authority. Ld. counsel submits that, as early as in August, 1992 the appellants had informed the department in writing that they would be paying duty of excise on the subject goods under Sub -heading 2404.50 under protest. It is the further submission of the counsel that the appellants have ever registered such protest by way of appropriate remarks in RT -12 returns, AR -1, gate passes etc. from time to time. Ld. counsel, therefore, submits that the lower authorities ought to have accepted the protest registered by the appellants and, on that basis, they ought to have held that the refund claim was not barred by limitation, in support of this plea of defence against the bar of limitation, Ld. counsel seeks to draw support from the decision of this Tribunal on the classification of the goods in Sons Udyog Ltd. and Anr. v. CCE, Bhopal, 2001 (73) ECC 211 (T): 2000 (41) RLT 683. On the aspect of unjust enrichment, Ld. counsel submits that sufficient evidence was placed before the original authority to establish that the burden of duty on the subject clearances had not been passed on to the customers. Ld. counsel further points out that, in the show -cause notice, the department had not proposed to reject the refund claim on the ground of unjust enrichment. Counsel, therefore, prays for setting aside the order of the Commissioner (Appeals) and allowing the refund claim.