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2013 (11) TMI 1469 - AT - Central ExciseRebate claim on motorcycle exported – Motorcycle liable to pay NCCD – Duty along with interest and penalty demanded - Whether imposition of penalty of Rs.2.02 crores required to be upheld or not – Held that:- The NCCD paid by the assessee is to be refunded to them in cash as their final product was cleared for export and the other duties paid by them already stand refunded to them - there was sufficient credit almost to the extent around Rs.36 crores accumulated with the appellant and same could have been utilized for payment of NCCD and such payment out of cenvat credit account could have been converted into refund in cash - by not paying NCCD, the appellant cannot be held to have been benefited in any manner - On the contrary, the same has resulted in financial loss to the appellant – it would not be justifiable to invoke the penal provisions against the appellant. Relying upon Larsen & Toubro Ltd. Vs. CCE, Pondicherry [2008 (1) TMI 234 - CESTAT, CHENNAI] - Non-payment of differential duty, which would have been refunded to the assessee on account of export of the goods under rebate, results in revenue neutrality and thus, penalty cannot be imposed - the order insofar as it relates to the penalty set aside and the duty is not being contested by the Advocate – decided in favour of Assessee.
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