Refund of excise duty denied where capacity order stood unchallenged, payment was not under protest, and incidence burden was not rebutted.

Refund of excise duty was not available where the order fixing annual capacity of production remained operative and had not been challenged or set aside. The claim also failed because the duty was paid without following the prescribed protest procedure under the excise rules, weakening the basis for refund. Further, the claimant did not discharge the statutory burden under the presumption against passing on the incidence of duty. On these combined grounds, the refund claim was held unsustainable and the assessee was denied relief.

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Issues: Whether the assessee was entitled to refund of duty when the order fixing annual capacity of production had not been challenged and the duty was paid without following the prescribed protest procedure, and whether the burden under the statutory presumption against passing on the incidence of duty was discharged.

Analysis: The refund claim was examined against the background that the Commissioner's order fixing annual capacity of production remained operative and had not been set aside in appeal. The claim was also tested on the footing that the payment was not made under protest in the manner prescribed by the relevant excise rules. In addition, the statutory burden under the provision relating to passing on of duty was considered, and the record did not show sufficient discharge of that burden by the claimant.

Conclusion: The refund was not sustainable and the assessee was not entitled to the relief claimed.

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