Refund claim for concessional excise duty where composite invoices concealed duty leads to allowance of refund and relief

Refund claim concerned differential excise duty under a concessional 50% rate and whether duty incidence was passed to customers; invoice evidence showing composite price with duty not indicated separately supported the conclusion that duty was not passed on, discharging the burden of proof on the claimant, and negating unjust enrichment as a ground to deny refund. Reliance was placed on prior tribunal decisions affirmed by higher authority that identical invoicing establishes the presumption that duty was not borne by consumers, resulting in allowance of the refund claim with consequential relief.

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Issues: Whether the refund claim of excise duty paid for the period 19-8-84 to 8-11-84 is barred by the doctrine of unjust enrichment or whether the appellants are entitled to refund because incidence of duty was not passed on to buyers.

Analysis: The refund claim arises after a Tribunal order holding entitlement for the period in question and after dismissal of Revenue's appeal by the Supreme Court. The statutory amendment to Section 11B occurred after the Tribunal order and after the formal refund application. Evidence on record shows invoices as cum-duty (composite) prices with duty not indicated separately and sale prices remaining unchanged during the material period. Where invoices show a composite price and the sale price remained the same when exemption was enjoyed and when higher duty was paid, this discharges the burden to show that the incidence of duty was passed on to consumers. Established authorities confirm that unjust enrichment will not be attracted where the duty was not shown to have been passed on and where refund proceedings had, in effect, reached finality before operative adverse statutory changes.

Conclusion: The refund claim is not barred by unjust enrichment; the appellants are entitled to refund for the period 19-8-84 to 8-11-84 and the appeal is allowed in favour of the assessee.

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