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Issues: Whether the refund claim of duty paid under protest on captively consumed goods was barred by the doctrine of unjust enrichment, and whether the evidence showed that the incidence of duty had been passed on to buyers.
Analysis: The duty on calcium carbide used captively in manufacture had been paid under protest, and the assessments for the relevant period were provisional pending approval of price and classification lists. Refund arose only after final determination that the goods were not excisable. In such circumstances, the doctrine of unjust enrichment did not apply to refund of duty paid under protest, and recoveries or refunds consequent upon final determination of liability were outside the bar of Sections 11A and 11B of the Central Excise Act, 1944. The documentary evidence, including chartered accountant certificates, sale invoices, gate passes, and comparative statements, showed that the selling price of the final product remained substantially unchanged and was not influenced by the duty paid on the inputs.
Conclusion: The refund claim was not hit by unjust enrichment, and the incidence of duty had not been passed on. The finding against refund was unsustainable and the assessee was entitled to the refund.
Final Conclusion: The order rejecting refund was set aside and the appeal succeeded.
Ratio Decidendi: Refund of duty paid under protest on provisional assessments is not barred by unjust enrichment, and the bar does not apply where the evidence establishes that the incidence of duty was not passed on.
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