Excise duty paid under protest still falls under Section 11B refund rules, with unjust enrichment needing fresh proof.

Payment of excise duty under protest under Rule 233B preserves the assessee's right to dispute liability, but it is not equivalent to provisional assessment under Rule 9B; a claim for repayment of duty already paid therefore falls within Section 11B of the Central Excises and Salt Act, 1944. The argument that such refund lay outside Section 11B was rejected. On unjust enrichment, the record before the Tribunal was incomplete on price lists, invoices, discounts, actual realisation, balance sheet entries and profit and loss material, so the question whether the duty burden had been passed on to buyers required fresh examination. The refund dispute was remitted for reconsideration after review of the supporting evidence and hearing the parties.

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Issues: (i) Whether duty paid under protest during the relevant period could be treated as a mere adjustment on finalisation of assessment so as to fall outside the refund scheme under Section 11B of the Central Excises and Salt Act, 1944. (ii) Whether the appellants had established that the incidence of duty had not been passed on to buyers and that the refund claim was not barred by unjust enrichment.

Issue (i): Whether duty paid under protest during the relevant period could be treated as a mere adjustment on finalisation of assessment so as to fall outside the refund scheme under Section 11B of the Central Excises and Salt Act, 1944.

Analysis: Payment under protest under Rule 233B of the Central Excise Rules preserves the right to contest liability and seek refund, but it is not the same as provisional assessment under Rule 9B of the Central Excise Rules. Final adjustment on assessment finalisation is contemplated only where provisional assessment is lawfully made. A claim for repayment of excise duty already paid is, therefore, governed by Section 11B.

Conclusion: The contention that the claim lay outside Section 11B was rejected.

Issue (ii): Whether the appellants had established that the incidence of duty had not been passed on to buyers and that the refund claim was not barred by unjust enrichment.

Analysis: The lower authorities proceeded on the footing that the invoice price remained a cum-duty price and that the duty element was recovered from customers. However, the relevant price lists and supporting documents showing the claimed discounts and actual realisation were not before the Tribunal. The Tribunal held that the rival claims on discount, price realisation, and passing on of duty required fresh examination on the basis of the relevant invoices, price lists, and other supporting material, along with the appellants' balance sheet and profit and loss entries.

Conclusion: The finding on passing of duty and unjust enrichment was set aside for fresh consideration.

Final Conclusion: The refund dispute was not finally decided on merits and was sent back for reconsideration by the appellate authority after examining the supporting evidence and granting opportunity of hearing.

Ratio Decidendi: A payment made under protest is not provisional assessment, and a refund of excise duty already paid is governed by Section 11B; entitlement to refund then depends on proof that the duty burden was not passed on.

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