ELECHMEN Vs. COMMISSIONER OF CUSTOM

JUDGEMENT

(1.) IN all these three appeals a common question of law and facts are involved and hence they are taken up together for disposal as per law. Appellants had imported "Heat Shrinkable Sleeves" (SLV) which are said to be used as insulating material for telecom cable classifiable under sub -heading 3926.90 of the Customs Tariff Act. - They paid duty and cleared the goods. However, they filed refund applications seeking re -classification of the goods under heading 8547.90 of the Customs Tariff Act. The Collector (Appeals), by three separate impugned orders rejected the pleas of the appellants on merits and also held that in case refund is granted it will be hit by Section 27 of the Customs Act, 1962 as duty has been passed on to the customers. Therefore, both on merits as well as on unjust enrichment the Commissioner (Appeals) has rejected their appeals.

(2.) THE Appellants are not present. Their Counsel Shri S. Raghu, has filed a written brief in this case and has requested that the case may be decided on merits.

(3.) IT is contended that the item is classifiable only under heading 8547.90 as per its end -use and supplied to the DOT for insulation of the underground cables. They also referred to Rule 3(a) of the Interpretative Rules for the purpose of seeking classification under Chapter 85. They also stated that there is divergent Customs practice in respect of classification of this item. They also stated that the goods were not sold as such, but alongwith other materials in a kit "Telecom Kit", only consolidated price is collected and hence it cannot be said that the burden of tax was passed on to the customers and hence refund is not hit by the unjust enrichment clause effective from 20.9.91. In fairness the learned Counsel has made available a copy of the final order of the Tribunal bearing Order No. 3195/97 dated 1.12.97 rejecting their appeal on the same issue solely on the ground that refund is hit by unjust enrichment clause and that it is not necessary for the Bench to go into the dispute on classification.