Unjust enrichment in excise refund turns on factual proof that duty incidence was not passed on to buyers.

Incidence of excise duty passed on to buyers is primarily a question of fact, and the statutory presumption against refund under unjust enrichment can be rebutted by evidence. On the record, the assessee relied on sales material, balance-sheets, customer confirmations, affidavits, and chartered accountant certificates to show that the selling price remained unchanged and the differential duty was treated as receivable. The authorities accepted that the duty burden had not been passed on, so refund was payable to the assessee and not creditable to the Consumer Welfare Fund.

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Issues: Whether the assessee had discharged the burden of showing that the incidence of excess excise duty was not passed on to buyers, so as to entitle it to refund and defeat the plea of unjust enrichment.

Analysis: The refund claims arose from duty paid under protest in accordance with Rule 233B of the Central Excise Rules, 1944. The record showed that the assessee relied on contemporaneous sales material, balance-sheets, customer confirmations, affidavits, and chartered accountant certificates to show that the selling price remained unchanged and the differential duty was shown as receivable. The finding that the burden had not been passed on was treated as a factual finding. In such a matter, the presumption under Section 12B of the Central Excise Act, 1944 could be rebutted by evidence, and no substantial question of law arose where the authorities had already recorded a factual conclusion in favour of the assessee.

Conclusion: The assessee succeeded in proving that the duty incidence was not passed on, and the refund was payable to it rather than being credited to the Consumer Welfare Fund.

Final Conclusion: The Department's challenge failed, the refund claim stood allowed in substance, and the appeal was dismissed with costs.

Ratio Decidendi: Whether the incidence of excise duty has been passed on to buyers is primarily a question of fact, and once concurrent factual findings show that the burden was not passed on, refund cannot be denied on the ground of unjust enrichment.

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