Unjust enrichment does not bar refund of protest deposits when evidence shows duty incidence was not passed on.

Amounts deposited under protest during investigation or adjudication, and amounts paid before any show cause notice was issued, were treated as deposits rather than duty for refund purposes under section 11B of the Central Excise Act, 1944. The bar of unjust enrichment did not apply where supporting accounts and a Chartered Accountant's certificate showed that the incidence had not been passed on. Mere accounting treatment of the sums as expenditure in the profit and loss account was insufficient to establish passing on. Refund was therefore admissible and the sanction in favour of the assessee was restored.

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Issues: Whether the amount deposited under protest during the pendency of adjudication and investigation, and the amount deposited for the period when no show cause notice was issued, was refundable without attracting the bar of unjust enrichment under section 11B of the Central Excise Act, 1944.

Analysis: The amount paid during the pendency of proceedings was treated as a deposit and not as duty paid towards a concluded liability. The refund claim was supported by the relevant accounts and a Chartered Accountant's certificate, and the fact that the price of lignite was fixed by the statutory regulator and not by the appellant independently was material. Mere booking of the amount as expenditure in the profit and loss account did not by itself establish that the incidence of duty had been passed on. For the later period, no show cause notice had been issued, so the payment made under protest was also a deposit made by way of caution and not duty within the meaning of the refund provisions.

Conclusion: The bar of unjust enrichment did not apply, and the refund was admissible in favour of the assessee.

Final Conclusion: The impugned appellate order was set aside, the refund sanction in favour of the appellant was restored, and the appeal succeeded with consequential relief.

Ratio Decidendi: Amounts deposited under protest during investigation or adjudication, or deposited before any show cause notice is issued, are not to be treated as duty for the purpose of unjust enrichment if the evidence shows that the incidence was not passed on.

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