2004 (1) TMI 135

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....eared goods under brand names ("Unique" and "AVS") of others who were not eligible for the SSI benefit, they paid duty at full Tariff rate in terms of para (4) of the above Notification. Unbranded goods or goods affixed with their own brand name were cleared by availing the exemption under the above Notification. All the clearances were made in terms of the declaration filed under Rule 173B. A dispute with the department arose when the appellants paid duty at full rate by utilizing Modvat credit in respect of a consignment branded as "MA", cleared to M/s. Metal Aids, under invoice No. 60, dated 6-6-1994. The department deemed this clearance of goods as exercise of option by the appellants under the first proviso to para (4) of the Notificat....

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....djudicating authority was rejected on merits although the quantum of penalty was reduced. Hence this appeal of the assessee. 2. We have heard Counsel for the appellants and DR for the respondent, and have carefully considered their submissions. The short question raised before us is whether the clearance, on payment of duty of excise at normal rate, of the specified goods marked "M.A." to M/s. Metal Aids, Bhadrabad (Haridwar) under invoice No. 60 of 6-6-1994 should be deemed to be an exercise of option under the first proviso to para (4) of Notification No. 1/93-C.E. Para (4) itself was in the nature of a proviso to para (1) of the Notification and the same created a bar against availment of the exemption under para (1) in respect of spe....

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....of their accounting clerk who was new to the job. This explanation needs to be examined in the totality of the facts of the case. Admittedly, the assessee had not exercised any option in writing to the department under the first proviso to para (4). Admittedly, again, they were lawfully clearing "AVS" - branded and "Unique" - branded goods also on payment of duty at full rate during the period of dispute. The clearance of goods under invoice No. 60 of 6-6-1994 was a solitary instance of payment of duty on goods which should have been cleared by availing the benefit under para (1) of the Notification. The party's explanation that it was due to an inadvertent error on the part of their new accounting clerk, in our view, should have been accep....