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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 ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 refund of the same in cash. As such, he submits that by not paying NCCD, the appellant has been unable to convert the credit amount into cash amount. As such, his contention that such non-payment is neither deliberate nor intentional with any ulterior motive, in which case the penalty should not have been imposed upon him. He makes it clear that inasmuch as he has already filed rebate claims of the NCCD paid by them, which are pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to the appellant. If that be so, we do not find it justifiable to 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 account of export of the goods under rebate, results in revenue neutrality and thus, penalty cannot be imposed. In fact, in the said decision, Tribunal set aside the demand of differential duty itself. 7. In view of our foregoing discussion, we set aside the impugned order insofar as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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