Unjust enrichment defeats excise refund claim where assessee fails to prove duty incidence was not passed on to buyers.

A refund claim for differential central excise duty paid under protest remained subject to Section 11B, because the matter arose from reclassification and not provisional assessment. The assessee had to rebut the statutory presumption under Section 12B by proving that the duty burden was not passed on to buyers. Affidavits, cost sheets, invoices, price stability and related documents were found insufficient to establish that the incidence was borne by the assessee. The amended refund provisions therefore applied, unjust enrichment barred the claim, and the refundable amount was directed to the Consumer Welfare Fund.

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Issues: Whether the assessee was entitled to refund of differential central excise duty paid under protest on pre-cured tread rubber, or whether the claim was barred by the doctrine of unjust enrichment under the amended refund provisions.

Analysis: The refund claim arose from reclassification of the product and was not a case of provisional assessment under Rule 9B of the Central Excise Rules, 1944. The assessee had paid duty under protest under Rule 233B of the Central Excise Rules, 1944, and therefore the refund claim remained subject to Section 11B of the Central Excise Act, 1944. Under Section 12B of the Central Excise Act, 1944, the burden lay on the assessee to prove that the incidence of duty had not been passed on to buyers. The assessee relied on affidavits, cost sheets, price stability, gate passes, invoices, and transfer memos, but the authorities found that the documents did not establish that the duty burden was borne by the assessee. The departmental cost analysis showed that the price structure included duty and that the assessee continued to earn a margin, while the price lists and surrounding materials indicated a standard pricing structure applicable across products. The Tribunal held that the assessee failed to rebut the statutory presumption and that the amended refund provisions applied to the claim.

Conclusion: The refund was not admissible; the assessee did not prove that the duty incidence had not been passed on, and the amount was correctly directed to be credited to the Consumer Welfare Fund.

Final Conclusion: The appeal failed on the question of unjust enrichment and the refund claim was rejected.

Ratio Decidendi: A refund claim under Section 11B of the Central Excise Act, 1944 is not maintainable unless the assessee affirmatively proves that the duty incidence was not passed on to buyers, and a mere claim of price stability or payment under protest does not displace the statutory presumption under Section 12B.

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