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2006 (3) TMI 424 - AT - Central ExciseRefund - Payment of duty initially at higher value - unjust enrichment - HELD THAT:- There is merit in the appellant’s case. Unjust enrichment arises only when an amount of duty originally paid by an assessee to Government and passed on to the buyer of the goods is refunded to the assessee. In the present case, even though the assessee paid duty based on the invoiced higher price at the time of removal of the goods from the factory, the buyer (Electricity Board) approved the price only at a lower rate. Duty was reimbursed also only at the lower price. The price approval was also in terms of the tender payment at the time of removal of goods. Thus, no passing on of the higher duty amount ever took place. It is also not necessary that in all cases of price uncertainty, provisional assessment should be resorted to. Assessee can also resort to refund claim. Nor does provisional assessment help. The bar of unjust enrichment covers provisional assessment also. The only relevant question is whether the refund claim is in relation to a tax payment which remains passed on. Whether the original assessment was provisional or final is wholly irrelevant as excess payment of duty can take place under both types of assessments. In the present case, there is no dispute that the excess payment of duty was not passed on to the buyer. In the result, the appeal is allowed after setting aside the impugned order. Revenue shall refund the excess paid duty to the assessee appellant at the earliest.
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