Unjust enrichment in excise refunds: provisional assessment and payment under protest do not by themselves prove non-passing of duty.

Refund of excess excise duty remains subject to the unjust enrichment bar unless the assessee proves that the duty incidence was not passed on. The text explains that this exception is confined to genuine provisional assessment finalised under the prescribed rule, supported by an order and clear evidence of provisional clearances and payment; payment under protest does not by itself remove the Section 11B(2) requirement. It also states that a fixed, tax-inclusive contract price does not automatically show that the manufacturer absorbed the duty, because price structure may reflect other commercial factors. On the stated facts, the assessee failed to prove non-passing of the burden, so refund was not available.

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Issues: (i) Whether refund of excess excise duty was exempt from the requirement of proving that the incidence of duty had not been passed on, on the footing that the clearances were provisional or the duty was paid under protest; (ii) Whether the assessee established that the burden of duty had not been passed on merely because the contract price remained firm and inclusive of taxes.

Issue (i): Whether refund of excess excise duty was exempt from the requirement of proving that the incidence of duty had not been passed on, on the footing that the clearances were provisional or the duty was paid under protest.

Analysis: The governing principle applied was that refund claims are subject to the bar against unjust enrichment under Section 11B(2), unless the case falls within the narrow category of refund arising from finalisation of a genuine provisional assessment under Rule 9B. The Tribunal held that the later Supreme Court authorities did not assist the assessee: provisional assessment must be supported by an order under Rule 9B and by clear evidence that clearances and payment were made on that provisional basis. The Tribunal further held that even duty paid under protest does not escape the requirement of Section 11B(2), following the binding construction placed on Mafatlal Industries and the later interpretation accepted in Hindustan Metal Pressing Works.

Conclusion: The assessee was not entitled to avoid the requirement of proving non-passing of duty incidence on the footing of provisional assessment or payment under protest.

Issue (ii): Whether the assessee established that the burden of duty had not been passed on merely because the contract price remained firm and inclusive of taxes.

Analysis: A fixed or tax-inclusive contract price does not by itself establish that the duty burden was absorbed by the manufacturer. The Tribunal applied the principle that absence of a separate duty component in the invoice or the maintenance of a constant price does not inevitably show that the burden was not passed on, since other commercial factors may explain the price structure. The assessee led no sufficient material to displace that inference.

Conclusion: The assessee failed to prove that the incidence of duty had not been passed on.

Final Conclusion: The refund claim failed on the ground of unjust enrichment, and the dismissal of the appeal left the denial of refund undisturbed.

Ratio Decidendi: Refund of excise duty is barred by unjust enrichment unless the assessee proves non-passing of the duty burden, and that burden is not displaced merely because the duty was paid under protest or because the sale price remained firm and tax-inclusive.

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