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2009 (8) TMI 482 - AT - Central ExciseDemand-Limitation- Notification No. 09/2001- appellant is engaged in the manufacture of various products like Tooth Paste, Shaving Cream, Medicaments and other Cosmetic items. During the period Jan 2001 to March 2002, the appellant was availing the benefit of small scale Notification No. 09/2001. during the investigations it was found that since the tooth paste carrying the brand name of ‘Fresh Moments’ was under the contract with M/s. Modicare Limited, who were the owner of the said brand name, the benefit of Notification was not available to them. Accordingly, proceedings were initiated by way of issuance of show cause notice, which culminated into the impugned order passed by Original Adjudicating Authority confirming the duty demand along with confirmation of interest and imposition of penalty of identical amount. Appeal against the above order did not succeed before the Commissioner (Appeals). Held that- if appellants would have cleared such branded products on full payment of duty instead of availing concessional rate of duty, they would have entitled to more clearances of their own products at concessional rates, which they had cleared on full rate of duty after crossing the exemption limit of Rs.one crore. As such, we agree with the appellants that by adopting such route they have ended up paying more duty than what was required to be paid. This fact also lends credence to their submissions that there could be no mala fide on their part inasmuch as, they had crossed the limit of Rs.one crore and had cleared their goods on payment of full rate. Thus, we find no merits in the impugned order confirming the demand of duty, imposing penalty and the same is required to be set aside. Both the appeals are allowed with consequential relief to the appellants.
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