Unjust enrichment in excise refund failed where duty passing was not proved and invoices showed nil duty.

Refund of excise duty was held payable because the department failed to prove that the duty incidence had been passed on to buyers. The earlier record showed the duty element in the relevant gate passes and invoices as nil, and the later claim that the invoice price included duty was unsupported. The respondents also could not produce the original gate passes despite being called upon to do so, and their material did not displace the petitioner's evidence that it had borne the duty burden. The statutory bar against refund on unjust enrichment was therefore not established, and refund with interest followed.

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Issues: Whether the petitioner was entitled to refund of excise duty paid on the goods, or whether the claim was barred on the ground that the incidence of duty had been passed on to buyers and was therefore hit by unjust enrichment.

Analysis: The refund had already been granted by the Tribunal in respect of remoulded chocolates and the remaining controversy was whether the department had established passing on of duty. The earlier appellate record noted that the duty element in the relevant gate passes and invoices was shown as nil, and the later assertion that the invoice price included duty was found unsupported. The respondents were unable to produce the original gate passes despite being called upon to do so, and the material placed by them did not displace the petitioner's evidence that the duty burden was borne by it. In these circumstances, the statutory bar under Section 11B of the Central Excise Act, 1944 was not shown to apply so as to deny refund.

Conclusion: The petitioner was entitled to refund of the duty amount with interest, and the plea of unjust enrichment failed.

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