Unjust enrichment in excise refund turns on proof that duty incidence was not passed on, not invoice disclosure alone.

A refund claim for excise duty paid under protest was not barred by unjust enrichment where the assessee showed that the total invoice price and price per case remained unchanged after the higher duty, and filed an affidavit that the duty burden was not passed on. Separate disclosure of duty in invoices did not, by itself, prove passing on of incidence because excise law required such disclosure. The controlling test is whether the assessee, on the totality of evidence, proves that the duty was absorbed by it. On those facts, the refund was allowable.

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Issues: Whether the refund claim of excise duty was barred by unjust enrichment on the ground that duty was shown separately in invoices and the sale price remained unchanged, and whether the principle stated in Allied Photographics applied so as to defeat the assessee's claim.

Analysis: The refund claim arose after the assessee paid higher duty under protest following reclassification of goods. The evidence accepted in substance showed that the total invoice price and price per case remained unchanged before and after the higher duty, and the assessee also filed an affidavit stating that the duty burden had not been passed on. The separate display of duty in invoices did not by itself establish passing on of the incidence, because the excise law required disclosure of duty particulars in the invoices and returns. The principle that uniform price alone is not conclusive under unjust enrichment was applicable, but on the additional facts and circumstances the assessee had proved that the increased duty was absorbed by it.

Conclusion: The refund claim was not hit by unjust enrichment, and the assessee succeeded in showing that the incidence of higher duty had not been passed on.

Ratio Decidendi: In a refund claim under Section 11B, separate indication of duty in invoices and price uniformity alone do not establish unjust enrichment; the decisive question is whether the assessee has, on the totality of evidence, discharged the burden of proving that the incidence of duty was not passed on.

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