Unjust enrichment in provisional assessment refund is rebuttable when evidence shows duty burden was not passed on.

Refund arising from finalisation of provisional assessment was held not to be barred by unjust enrichment where the assessee rebutted the statutory presumption that duty had been passed on. The Court accepted concurrent findings that the intermediate goods were cleared for captive consumption in the manufacture of exempt final products, the final product price remained unchanged during the relevant period, and the duty element was not built into the sale price. On the evidence, including refund calculations and accounting material, the excess duty burden was shown to have been borne by the assessee, so unjust enrichment did not apply and refund was allowable. The challenge raised only a factual dispute, and no substantial question of law arose.

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Issues: Whether the refund arising on finalisation of provisional assessment was barred by unjust enrichment, and whether the assessee had rebutted the statutory presumption that the incidence of duty was passed on to buyers.

Analysis: The Court found that the refund related to intermediate goods cleared for captive consumption in the manufacture of exempt final products, and that the assessment was provisional because cost elements were not available at the time of clearance. It accepted the concurrent factual findings that the price of the final product remained constant during the relevant period, that the duty element was not loaded into the sale price, and that the evidence on record, including the refund calculation and accounting material, sufficiently showed that the excess duty burden was not passed on. The Court held that the doctrine of unjust enrichment is attracted only where the claimant fails to establish that the burden was retained and that the concurrent findings were not perverse.

Conclusion: The refund claim was not hit by unjust enrichment and the assessee was entitled to refund.

Final Conclusion: The appeals raised only a factual challenge to the concurrent findings on passing of duty burden, and no substantial question of law arose for interference.

Ratio Decidendi: In a refund claim arising from finalisation of provisional assessment, the statutory presumption of passing on the duty burden is rebuttable, and where the assessee proves on evidence that the incidence of duty was not passed on, unjust enrichment does not bar refund.

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