Unjust enrichment and excise refund: statutory presumption rebutted where duty was paid under protest and burden was not passed on.

Refund of differential excise duty was held not to be barred by unjust enrichment because the statutory presumption under Section 12B stood rebutted on the facts. The duty had been paid under protest after the assessee stated that it would not pass on the burden and would seek refund if successful. The record showed no increase in maximum retail price or wholesale price, and the balance sheet treated the amount as excise duty recoverable from the revenue authorities. The department's finding that the incidence had been passed on was therefore unsupported, and the refund claim was allowed.

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Issues: Whether the refund claim was barred by unjust enrichment and whether the statutory presumption that the incidence of excise duty had been passed on to buyers stood rebutted on the facts.

Analysis: The differential duty had been paid under protest after the assessee had expressly stated that it would not pass on the burden and would claim refund if it succeeded. The record showed that the maximum retail price and wholesale price were not increased. The balance sheet and related records reflected the amount as excise duty recoverable from the revenue authorities. On these facts, the statutory presumption under Section 12B stood rebutted and the department's conclusion that the duty had been passed on was held to be unsupported.

Conclusion: The refund was not hit by unjust enrichment and the assessee was entitled to the refund claim.

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