Refund barred without challenging final capacity-fixation order, even where gallery length was said to be wrongly included.

A refund of duty based on capacity determination could not be entertained where the original order fixing annual production capacity and the resulting duty liability had attained finality and was never challenged. The claim that galleries should have been excluded from the computation did not, by itself, justify refund because the operative assessment order remained in force. The article notes that the principle that duty is not chargeable on the length of galleries could not assist without first securing reversal or modification of the capacity-fixation order. The refund claim was therefore held not maintainable and its rejection was upheld.

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Issues: Whether a refund of duty paid on the basis of the capacity determination could be granted without first challenging or setting aside the original order fixing the annual capacity of production and the consequential duty liability.

Analysis: The duty demand had been determined by the Commissioner on the basis of the number of chambers, including the galleries, and that determination had attained finality because it was not appealed against. The claim for refund rested on the contention that the galleries ought not to have been included in the computation, but such a contention could not support refund unless the underlying determination order was first reversed or modified. Reliance was placed on the principle that duty is not chargeable on the length of galleries, but that principle did not assist the appellant in the absence of a challenge to the operative assessment order.

Conclusion: The refund claim was not maintainable and the rejection of refund was ; the appeal failed.

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