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2005 (4) TMI 84 - BOMBAY HIGH COURTRefund of cess paid under protest - Unjust enrichment - Constitutional validity of Section 11B brought on the statute by way of the Central Excise and Customs (Amendment) Act, 1991 ("Amendment Act of 1991") - HELD THAT:- The Apex Court in the case of Barnagore Jute Factory [1991 (12) TMI 142 - SUPREME COURT] was concerned with interpretation of Rule 3 of Jute Cess Rules by which provisions of Central Excises and Salt Act, 1944 and Rules framed thereunder including those relating to refund of duty were made applicable. The rule involved in the case on hand which warrants interpretation is Rule 3 of the Cess Rules, 1981 which is identical to Rule 3 of the Jute Cess Rules. The aforesaid judgment of the Apex Court in the case of Sahakari Khand Udyog Mandal Ltd. [2005 (3) TMI 116 - SUPREME COURT], clearest possible term has held that the doctrine of unjust enrichment is based on equity and the same is very much applicable irrespective of application of Section 11B of the Central Excise Act. Such similar provision merely gives recognition to the equitable doctrine of unjust enrichment. Absence of statutory provision does not mean that, a person can claim or retain undue benefit. Before claiming a relief of refund, the person claiming refund must show that he has paid the amount for which relief is sought; that he has not passed on the burden on the consumers and that if such relief is not granted, he would suffer loss. It is not in dispute that the petitioners have recovered the cess from their customers. In view of this undisputed fact, it is an academic debate as to whether or not incorporation of the provisions of the Central Excise Act is a legislation by incorporation or by reference. Irrespective of the applicability of Section 11B of the Central Excise Act, no refund can be allowed unless it stands to the test of doctrine of unjust enrichment. Thus, in our view, the petition is devoid of any substance and the same is thus liable to be dismissed. In the result, petition fails.
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