Unjust enrichment in duty refund claims fails where contemporaneous evidence shows the duty burden was not passed on to the buyer.

Refund of duty paid under protest was examined on the question whether unjust enrichment applied. Contemporaneous correspondence showed the buyer could not absorb additional duties and required billing at earlier prices, while the records did not show recovery of the duty element over and above the agreed price. On that material, the incidence of duty was not proved to have been passed on to the buyer, so the bar of unjust enrichment did not apply and the refund was not denied.

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Issues: Whether the refund claim was barred by unjust enrichment on the ground that the incidence of duty had been passed on to the buyer.

Analysis: The refund arose because duty was paid under protest after denial of exemption, and the only controversy was whether the duty burden had been shifted. The buyer's contemporaneous letter stated that it could not absorb additional duties and levies and that the supplier should bill at the earlier prices. The records also showed that the agreed price remained substantially the same and there was no evidence from the department that the duty element had been recovered from the buyer over and above the price. On that material, the bar of unjust enrichment was not attracted.

Conclusion: The refund was not hit by unjust enrichment and the Revenue's challenge failed.

Ratio Decidendi: Where contemporaneous evidence shows that duty paid under protest was not recovered from the buyer and the price structure was not loaded with the duty element, the refund is not barred by unjust enrichment.

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