Unjust enrichment governs appellate refund claims from provisional assessment, and non-passing of duty must be independently proved.

Refund claims arising from appellate relief in provisional assessment are governed by the unjust enrichment bar under section 11B of the Central Excise Act, 1944. The text states that such refunds do not escape section 11B merely because they relate to provisional assessment, and the claimant must independently show that the duty burden was not passed on to buyers. Balance-sheet entries alone are insufficient, and a chartered accountant's certificate needs supporting evidence on pricing, cost structure and actual recovery. Where the material is inadequate, the passing-on issue may require fresh examination by the original authority.

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Issues: (i) Whether the refund claim arising from appellate relief in respect of provisional assessment was governed by unjust enrichment under section 11B of the Central Excise Act, 1944. (ii) Whether the assessee had established that the duty incidence had not been passed on to the buyers.

Issue (i): Whether the refund claim arising from appellate relief in respect of provisional assessment was governed by unjust enrichment under section 11B of the Central Excise Act, 1944.

Analysis: The refund arose not from a simple adjustment on finalisation of provisional assessment but as a direct consequence of the Tribunal's appellate order granting relief. Refunds flowing from such appellate decisions are governed by section 11B, and the amended rule 9B also brought provisional assessment refunds within the ambit of unjust enrichment. The claim therefore attracted the statutory bar unless the assessee could satisfy the requirement of non-passing on.

Conclusion: The refund claim was subject to unjust enrichment under section 11B of the Central Excise Act, 1944.

Issue (ii): Whether the assessee had established that the duty incidence had not been passed on to the buyers.

Analysis: The balance-sheet entries showing the amounts as recoverable did not by themselves establish that the duty burden had not been recovered from buyers. The chartered accountant's certificate also lacked supporting detail on pricing, cost structure, and actual recovery through sales. Since the assessee sought to produce further material, a fresh examination was considered necessary.

Conclusion: The issue of passing on of duty incidence was remanded to the original authority for reconsideration.

Final Conclusion: The statutory bar of unjust enrichment applied, but the matter required fresh adjudication on whether the duty burden had been passed on, so the case was sent back for reconsideration on that limited issue.

Ratio Decidendi: A refund claim arising as a consequence of appellate relief in provisional assessment is governed by section 11B of the Central Excise Act, 1944, and the claimant must independently establish that the duty incidence was not passed on to the buyers.

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