Unjust enrichment in refund claims fails where duty incidence was not passed on and Revenue offers no contrary evidence.

Refund under Notification No. 108/95-CE was held not to be barred by unjust enrichment where the project contractor did not collect excise duty from NHAI and the contract documents, together with the NHAI certificate, supported that factual finding. A fixed-price contract, by itself, was insufficient to prove that the duty burden had been passed on. In the absence of any contrary material from Revenue, the record showed that the incidence of duty had not been transferred to the recipient, so the unjust enrichment objection failed and the refund entitlement was sustained.

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Issues: Whether the refund claim was barred by unjust enrichment, where the assessee executed a project covered by Notification No. 108/95-CE and the adjudicating authority had found that the duty incidence was not passed on to the recipient.

Analysis: The assessee was otherwise entitled to exemption under Notification No. 108/95-CE in respect of the project executed for NHAI. The appellate finding recorded that, on scrutiny of the contract documents and the certificate issued by NHAI, the assessee had not collected excise duty from NHAI. The contract being for a fixed amount did not, by itself, establish passing on of duty incidence. In the absence of any material from the Revenue to dislodge the factual finding that no duty burden was transferred to NHAI, the bar of unjust enrichment was not made out.

Conclusion: The refund claim was not hit by unjust enrichment and the Revenue's appeal failed on this issue.

Final Conclusion: The Revenue's challenge to the refund was rejected, and the assessee's entitlement to refund was sustained.

Ratio Decidendi: A refund cannot be denied on the ground of unjust enrichment where the record shows that the duty incidence was not passed on to the recipient and the Revenue produces no contrary evidence.

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