Unjust enrichment and refund: excess duty paid under protest on a cum-duty basis was not treated as passed on to buyers.

Refund of excess duty paid under protest was held not to be barred by unjust enrichment where the assessee had contracted on a cum-duty price basis and the sale price remained unchanged before and after the departmental clarification. The excess duty was paid only because the department insisted on it, and the facts did not show that the burden had been passed on to buyers. On that basis, the refund could not be credited to the Consumer Welfare Fund and cash refund was allowed with consequential relief.

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Issues: Whether the refund claim was barred by unjust enrichment and liable to be credited to the Consumer Welfare Fund.

Analysis: The assessee had contracted with the DTA buyers on a cum-duty price basis, the agreed price remained unchanged before and after the departmental clarification, and the higher duty was paid only because the department insisted on it. The payment was made under protest, and the invoices were not sufficient in the facts to displace the contractual and factual position that the excess duty burden had not been passed on. The authorities relied on by the assessee supported refund where the sale price remained unchanged and the burden of duty was not shifted to buyers.

Conclusion: The refund was not hit by unjust enrichment and could not be credited to the Consumer Welfare Fund; the assessee was entitled to the cash refund.

Final Conclusion: The appeal succeeded and the refund claim was allowed with consequential relief in accordance with law.

Ratio Decidendi: Where duty is paid under protest at the insistence of the department and the sale price remains unchanged on a cum-duty basis, the burden of duty is not treated as passed on and the refund is not barred by unjust enrichment.

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