Unjust enrichment governs excise refund claims, while provisional assessment refunds may need separate scrutiny on remand.

Refund of excess excise duty on captively consumed inputs remains subject to unjust enrichment under Section 11B(2), and the manufacturer must positively prove that the duty burden was not passed on; a mere assertion that sale prices did not change is insufficient. A refund claim linked to finalisation of provisional assessment may require separate examination where the factual basis is not fully established, and the matter may be remanded for consideration on departmental records and additional material. The Tribunal therefore rejected the unrestricted refund claim, set aside the appellate order granting refund, and sent the matter back for fresh decision on the provisional-assessment issue.

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Issues: (i) Whether refund of excess excise duty on captively consumed inputs was barred by the doctrine of unjust enrichment under Section 11B(2); (ii) Whether a claim arising from finalisation of provisional assessment could be considered outside Section 11B(2) and required remand for fresh adjudication.

Issue (i): Whether refund of excess excise duty on captively consumed inputs was barred by the doctrine of unjust enrichment under Section 11B(2).

Analysis: The earlier view that unjust enrichment did not apply to captively consumed goods was rejected because the Supreme Court had already overruled that approach. A mere circumstance that the finished product was sold at the same price before and after levy of duty was held insufficient to prove that the incidence of duty had not been passed on. The manufacturer was required to positively establish non-passing of the duty burden, and a general or inferential statement of "strong reason" could not substitute that proof.

Conclusion: The claim for refund was held to be subject to Section 11B(2), and the assessee had not established non-passing of the duty incidence on the material then before the Tribunal.

Issue (ii): Whether a claim arising from finalisation of provisional assessment could be considered outside Section 11B(2) and required remand for fresh adjudication.

Analysis: The Tribunal accepted that a refund arising from finalisation of provisional assessment may raise a distinct legal question under the principle recognised in Mafatlal. Since the assessee asserted that the duty had been provisionally assessed and later finalised, and the relevant records suggested that this contention had substance, the Tribunal held that the point could be examined even if not previously raised. Because the supporting material had not been fully produced before the authority, the proper course was to remand the matter for consideration on the available departmental records and any material placed within the stipulated time.

Conclusion: The matter was remanded to the adjudicating authority for reconsideration of the provisional-assessment claim and consequential refund issue.

Final Conclusion: The appeal succeeded, the appellate order granting refund was set aside, and the refund claim was sent back for fresh decision on the limited remand issue.

Ratio Decidendi: A refund of excise duty is governed by Section 11B(2) unless the assessee affirmatively proves that the duty burden was not passed on, and a claim linked to finalisation of provisional assessment may require separate examination on remand when the factual basis is not fully determined.

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