Unjust enrichment bars excise refund where duty burden was passed to the buyer, even after payment under protest.

A refund arising from a successful challenge to a provisional assessment under Rule 9B is governed by Section 11B of the Central Excise Act, 1944, not by automatic adjustment under Rule 9B(5). The tribunal held that the doctrine of unjust enrichment bars refund where the assessee has passed on the duty burden to the buyer, and payment under protest does not dispense with that requirement. On the facts found, the duty had already been recovered from the buyer, so the refund claim was not maintainable.

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Issues: Whether the refund claim arising from provisional assessment and challenged final assessment was barred by the doctrine of unjust enrichment where the duty had been paid under protest but the incidence had already been passed on to the buyer.

Analysis: The duty was paid during provisional assessment under Rule 9B of the Central Excise Rules in the context of a classification dispute, and the final assessment was successfully challenged by the assessee. The refund claim, therefore, arose not from an automatic adjustment under Rule 9B(5) but from the appellate decision, and was governed by Section 11B of the Central Excise Act, 1944. On the facts found, the assessee had already recovered the duty from its buyer. The doctrine of unjust enrichment applies where the claimant has passed on the burden of duty, and a refund in such circumstances would amount to an unwarranted windfall. Payment under protest did not displace the requirement to show that the duty burden had not been passed on.

Conclusion: The refund claim was hit by unjust enrichment and was not maintainable. The conclusion is against the assessee and in favour of the Revenue.

Ratio Decidendi: A refund arising from a successful challenge to a provisional assessment is governed by Section 11B of the Central Excise Act, 1944, and remains barred by unjust enrichment if the assessee has passed on the duty burden to the buyer, even where the duty was paid under protest.

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