Unjust enrichment does not bar refund of pre-deposit made during appeal where the duty burden was not passed on.

A pre-deposit made during the pendency of an appeal is not payment of duty, so the doctrine of unjust enrichment does not bar refund of that amount. Even if the sum is treated as duty, a finding that it was paid after clearance of goods, coupled with no challenge to that finding, is sufficient to show that the duty incidence was not passed on. The refund was therefore payable, and the appeal was rejected.

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Issues: Whether the bar of unjust enrichment applies to refund of pre-deposit made during the pendency of an appeal.

Analysis: A pre-deposit made during appeal is not payment of duty, and therefore the doctrine of unjust enrichment does not bar its refund. Even on the alternative footing that the amount was to be treated as duty, the finding that it was paid after clearance of goods and the absence of any challenge to that finding meant that the assessee had discharged the burden of showing that the duty incidence had not been passed on.

Conclusion: The refund was payable and the appeal was rightly rejected.

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