ORDER
Jyoti Balasundaram, Vice President
1. The appellants herein who are manufacturers of excisable goods falling under Chapter 87 of the CETA, 1985 had procured capital goods viz. steel body mechanical power press of 100 ton capacity in March 1998 and availed cenvat credit thereon. After use of the cenvated capital goods for about 7 years they cleared the same in March 2005 and paid excise duty and education cess thereon. As per Rule 3(5) of Cenvat Credit Rules, 2004, when the inputs or capital goods are removed as such from the factory, an amount equal to the credit availed in respect of such inputs or capital goods is to be paid by the manufacturer.
2. The assessee paid differential duty in July 2005 and also paid interest on the duty amount. The demand of differential duty was raised by the show cause notice on October 2005 and a demand was confirmed together with interest. Penalty of amount equal to differential duty was also imposed. The duty demand and penalty were upheld by the Commissioner (Appeals), whose order was not challenged by the assessee before the Tribunal. The assessee filed a claim for refund on the basis of Tribunal’s order in Madura Coats P. Ltd. v. CCE holding that no demand is sustainable on used cenvated capital goods removed as such. The claim was rejected by the Dy. Commissioner on the ground that the refund claim could not be entertained unless the order in appeal No. 153/06 dated 20.4.2006 by which duty demand and interest and penalty was upheld was set aside by the Tribunal. The Commissioner (Appeals) upheld the rejection of the refund claim; hence this appeal.
3. None appears for the appellant despite notice. Hence I have heard the learned DR. I agree with the revenue that there is no merit in the present appeal. Once the duty demand stands confirmed by the Commissioner (Appeals) and his order has not been challenged, the question of entertaining a claim for refund does not arise. It is only if the duty demand is set aside by the Tribunal that the assessees can seek refund of the duty paid. I, therefore, see no ground to interfere with the impugned order and accordingly uphold the same and reject the appeal.
(Dictated in Court)