Unjust enrichment applies to provisional assessment refunds, but remand is required where the assessee was not heard on duty incidence.

Refund arising from finalisation of provisional assessments was subject to the doctrine of unjust enrichment under the amended Section 11B of the Central Excise Act and Rule 9B(5) of the Central Excise Rules, 1944, with the legal position treated as clarified from 1-8-1998. The fact that part of the excess duty related to an earlier sub-period did not remove the claim from that bar. However, because the excess amount had been credited to the Consumer Welfare Fund at finalisation without giving the assessee an opportunity to rebut the presumption that the duty burden was passed on, the matter was remanded for fresh consideration after allowing evidence on incidence of duty.

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Issues: Whether the doctrine of unjust enrichment applied to refund arising from finalisation of provisional assessment for the relevant period, and whether the matter required remand because the assessee had not been given an opportunity to rebut the bar of unjust enrichment.

Analysis: The refund arose from finalisation of provisional assessments and, in light of the amended Section 11B of the Central Excise Act and Rule 9B(5) of the Central Excise Rules, 1944, the bar of unjust enrichment applied to the claim. The legal position was treated as clarified from 1-8-1998, so the fact that part of the excess duty related to an earlier sub-period did not take the claim outside the doctrine. At the same time, the excess amount had been credited to the Consumer Welfare Fund at the stage of finalisation itself, without granting the assessee an opportunity to produce evidence on whether the duty incidence had been passed on.

Conclusion: The doctrine of unjust enrichment applied to the refund claim, but the lower orders were set aside and the matter was remanded for fresh examination of whether the duty burden had been passed on, after giving the assessee an opportunity to adduce evidence.

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