Unjust enrichment in excise refund: factual findings on duty incidence meant no referable question of law arose.

Whether duty incidence had been passed on to the buyer was treated as a factual determination, not a referable question of law. Concurrent findings of the Commissioner (Appeals) and the Tribunal showed that the disputed duty was paid after clearance of the goods and from the assessee's own pocket, rebutting the statutory presumption of unjust enrichment. On that basis, the refund was held not to be barred by unjust enrichment, and no legal infirmity was shown to justify a reference. The Revenue's application was dismissed.

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Issues: Whether the question whether the incidence of central excise duty had been passed on to the buyer gave rise to a referable question of law under Section 35G of the Central Excise Act, 1944, and whether the refund was barred by unjust enrichment.

Analysis: The determination whether the incidence of duty has been passed on is essentially factual. The Commissioner (Appeals) and the Tribunal recorded concurrent findings that the disputed amount was deposited after the goods had been cleared and from the assessee's own pocket, so the statutory presumption under Section 12B stood rebutted. On that basis, the conclusion that the refund was not hit by unjust enrichment did not disclose any legal infirmity warranting a reference.

Conclusion: No question of law arose for reference, and the Revenue's application was dismissed.

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