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TMI Blog2013 (11) TMI 1469X X X X Extracts X X X X X X X X Extracts X X X X ..... hri V.P. Batra, DR JUDGEMENT Per Archana Wadhwa: After hearing both the sides, we find that the appellant is engaged in the manufacture of Motor Cycles. During the period, May, 2007 to July, 2008, they exported motorcycles manufactured by them under the claim of rebate. The said items were cleared on payment of basic excise duty as also education cess and secondary higher education cess. Subse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e NCCD along with other duties at the time of clearance of the goods, they would have been entitled to the refund of the same. He further submits that in fact, by not paying NCCD, at the time of clearances of the goods, it is the appellant, who is suffering financial loss inasmuch they could have paid the said duty from their accumulated cenvat credit of around Rs.36 Crores and would have got the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment by itself reflects upon his malafide in which case penal provisions would get attracted. As such, by relying upon the Hon'ble Supreme Court's decision in the case of Dharmendra Textile Processors (2008) 306 ITR 277 (SC, he submits that imposition of penalty to the extent of 100% is justified. 5. The dispute in the present appeal is as to whether in the facts and circumstances of the case, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o invoke the penal provisions against the appellant. 6. We also find support for our above views from the Tribunals decision in the case of Larsen & Toubro Ltd. Vs. CCE, Pondicherry reported in 2008 (227) ELT 65 (Tribunal-Chennai), wherein in identical facts and circumstances of the case, Tribunal has held that non-payment of differential duty, which would have been refunded to the assessee on a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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