Unjust enrichment bar in provisional assessment refunds does not apply to pre-determined trade discounts before clearance.

Refund arising from finalisation of provisional assessment was held not to be barred by unjust enrichment where the discounts reducing assessable value were predetermined and known to the trade before clearance of the goods. On those facts, the duty incidence was not treated as having been passed on, so the refund remained admissible to the assessee. The Tribunal also followed its earlier view in the assessee's own case and prior decisions recognising that known pre-removal discounts do not attract the unjust enrichment bar. The order crediting the refund to the Consumer Welfare Fund was therefore set aside and consequential relief was granted.

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Issues: Whether refund arising on finalization of provisional assessment was barred by unjust enrichment.

Analysis: The refund arose from finalization of provisional assessment for the period 1996-97. The discounts claimed by the assessee were found to be pre-determined and known to the trade before clearance of the goods, and the goods were sold to ultimate consumers after allowing such discounts. In this factual setting, the burden of proving that the duty incidence had been passed on did not lead to application of the unjust enrichment bar. The Tribunal also noted that similar refund on an earlier period had been allowed in the assessee's own case, and relied on prior decisions holding that where discounts are known prior to removal, unjust enrichment does not apply.

Conclusion: The bar of unjust enrichment was held inapplicable, and the refund was held admissible to the assessee.

Final Conclusion: The order crediting the refund to the Consumer Welfare Fund was set aside and the refund claim was sustained with consequential relief.

Ratio Decidendi: Where duty refund arises from finalization of provisional assessment and the discounts reducing the assessable value were predetermined and known before removal of goods, the doctrine of unjust enrichment does not bar refund.

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