Unjust enrichment bars excise refund where duty burden was passed on; provisional assessment and credit notes do not defeat the bar.

Refund of excise duty paid during provisional assessment or under protest remains barred if the claimant has passed on the duty burden to buyers. The doctrine of unjust enrichment applies independently of Section 11B of the Central Excise Act, so the claimant must prove that the incidence of duty was not transferred and that restitution is due. Credit notes issued after clearance do not by themselves rebut passing on of duty. Where the assessee has already recovered the duty from buyers, refund in its own hands is not permissible. The refund claim was therefore inadmissible.

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Issues: Whether refund of excise duty paid during provisional assessment and under protest was barred by unjust enrichment under Section 11B of the Central Excise Act, 1944, and whether issuance of credit notes to buyers established that the incidence of duty had not been passed on.

Analysis: The refund claim arose from duty payments made while the assessment was provisional, but the payments were also made under protest and the duty had in fact been recovered from buyers. The Court relied on the later Supreme Court view that the doctrine of unjust enrichment applies independently of Section 11B and that a claimant seeking refund must establish that the burden of duty was not passed on and that restitution is due. It further held that credit notes issued after clearance do not by themselves disprove passing on of duty, and that an assessee who has already passed on the incidence of duty cannot seek refund in its own hands.

Conclusion: The refund was not admissible and the appeal failed.

Final Conclusion: The order confirms rejection of the refund claim on the ground that the appellant had passed on the duty burden and could not avoid the bar of unjust enrichment by relying on provisional assessment or post-clearance credit notes.

Ratio Decidendi: A refund claimant must prove that the duty burden was not passed on to others, and the doctrine of unjust enrichment can bar refund even where the payment was made under protest or during provisional assessment.

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