Unjust enrichment bars refund on provisional assessment finalisation absent proof that duty burden was not passed on.

Refund arising from finalisation of provisional assessment remained subject to the doctrine of unjust enrichment after amendment of Rule 9B(5) of the erstwhile Central Excise Rules, 1944, even for earlier provisional periods. The assessee was required to prove that the duty incidence had not been passed on, and the record showed that no supporting evidence had been produced before the appellate authority. Because the factual basis on duty burden had not been fully examined at the second appellate stage, the matter was remanded to the adjudicating authority for fresh consideration after giving an opportunity to present evidence and observing natural justice.

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Issues: Whether refund arising on finalisation of provisional assessment was subject to the bar of unjust enrichment, and whether the matter required remand for fresh consideration of evidence.

Analysis: The refund claim arose after finalisation of provisional assessments. The governing position was that, after amendment of Rule 9B(5) of the erstwhile Central Excise Rules, 1944, the assessee had to establish that the duty burden had not been passed on, even where the provisional assessments related to an earlier period. The appellate authority had recorded that no evidence had been produced to show that the duty was borne by the assessee. Since the question depended on factual proof, and the necessary evidence had not been examined in detail at the second appellate stage, the matter required reconsideration by the adjudicating authority.

Conclusion: The refund was not finally granted, but the order was set aside and the matter was remanded for fresh decision after affording opportunity and following the principles of natural justice.

Ratio Decidendi: Refund arising from finalisation of provisional assessment remains subject to the doctrine of unjust enrichment after the amendment to Rule 9B(5), even for earlier provisional periods, and where the factual proof of duty incidence is incomplete the proper course is remand for reconsideration.

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