Unjust enrichment bars cash refund of excess duty under provisional assessment where duty incidence is not proved to remain with assessee.

Refund of excess duty paid under provisional assessment was held to be barred by unjust enrichment because the assessee cleared yarn to its weaving division on invoices reflecting the higher duty burden. The cost-sheet treatment and the claim that duty was not included in the cost of yarn or fabrics were found insufficient, as captive consumption and job-work arrangements do not by themselves prove that incidence was not passed on. In the absence of contrary evidence, the assessee failed to discharge the burden of proving non-passing of duty, and cash refund was denied.

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Issues: Whether refund of excess duty paid on provisional assessment was hit by unjust enrichment and therefore not admissible in cash to the assessee.

Analysis: The assessments were provisional and the assessee had cleared yarn to the weaving division through invoices showing the higher duty paid. The claim that duty element was not included in the cost of yarn or fabrics was not accepted, because in captive consumption and job-work arrangements the cost-sheet treatment was not ative of whether the duty burden had been passed on. The refund claim was also examined in the context that independent processors had taken deemed credit from 1-3-2001, supporting the view that the excess duty paid on yarn had entered the downstream valuation chain. In the absence of contrary evidence from the assessee, the burden of proving non-passing of duty incidence was not discharged.

Conclusion: The refund was correctly denied on the ground of unjust enrichment, and the assessee was not entitled to cash refund.

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