Judgment:
1. The common question for consideration in each of the appeals is whether each of the appellants was entitled to receive the refund of excise duty which it paid in excess, which was granted to it and subsequently recovered from it on the ground that such refund amounted to unjust enrichment.
2. The refund in each cases were sanctioned, the notice issued for its recovery issued orders confirming wrong payment passed, and the order of the Commissioner (Appeals) confirming that order passed before May, 1994, when Section 11B of the Act was incorporated in sub-section (2), doctrine of unjust enrichment would apply. However, in dealing with the refund, we are bound to give effect to the provisions of the amended section. Therefore, even though it could not legally have been raised when proceedings were going on, the question whether the incidence of duty has been passed is required to be answered. Counsel for the appellant answers it by saying that it has not been passed on because the price which was paid to the appellant for the goods in question was reckoned on the basis of the correct lower rate of duty, and therefore did not include the amount of duty which was paid in excess. He however does not have a scrap of evidence to produce in support of the claim.
It would therefore follow that the provisions contained in subsection (2) of Section 11B have not been complied with. The refund therefore instead of being paid to the claimant would have to be credited to the Consumer Welfare Fund.
3. We therefore modify the order of the Commissioner (Appeals) only to the extent that amount of refund, after its recovery from the appellant (which we are told still has not been done) shall be credited to the Consumer Welfare Fund.