1990 (6) TMI 81

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....eir customers and if refund is ordered it would result in unjust enrichment. In a further affidavit dated 16th August, 1988 filed on behalf of the respondents, the said contention was reiterated. After the passing of my aforesaid order dated 22nd March, 1990 an affidavit dated 10th April, 1990 was filed on behalf of the petitioners whereunder it was averred that the respondents are not entitled to raise the plea of unjust enrichment because of the instructions issued by the Central Government in respect of unjust enrichment to sanction refund claims under the provisions of Section 11B of the Central Excises and Salt Act, 1944. It is submitted on behalf of the petitioners that the said instructions do not permit the adjudicating officers to ....

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.... could, therefore, not be reasonable to conclude that AGIL, the sole distributors of the petitioners, must have passed on this burden to its consumers. The affidavit filed on behalf of AGIL further goes on to point out that the sale price fixed by it had no relevance to the excess excise collected. It had to be fixed in accordance with the price prevailing in the competitive market. It is further pointed out that AGIL has been giving trade discount of 2 to 4 per cent to its dealers. This was obviously to keep place with the competitive market. The margin of profit fixed by AGIL was not a fixed percentage such as 10%, 15% or 20% but depended upon the prevailing market price. On calculations being made in retrospect it works out that AGIL wer....