EOU clearances under the EXIM Policy are distinct from DTA sales, and exemption eligibility needs separate examination.

Clearances by a 100% EOU under Para 6.9 of the EXIM Policy are a distinct category and cannot be automatically equated with DTA sales under Para 6.8; the adjudicating authority therefore had to independently examine whether Notification No. 125/84-C.E. applied to those clearances. The matter was remitted for fresh consideration after hearing the assessee, with the assessee succeeding on this issue.

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Issues: Whether clearances made by a 100% Export Oriented Unit under Para 6.9(1)(b) of the EXIM Policy are to be equated with DTA sales, and whether Notification No. 125/84-C.E. required separate consideration.

Analysis: Clearances under Para 6.9 are treated as a distinct category and cannot automatically be equated with clearances under Para 6.8 governing DTA sales. On a plain reading of Para 6.9 of the EXIM Policy 2002-2007, such supplies are dealt with separately for the purpose of positive NFE. Since the adjudicating authority did not examine the applicability of Notification No. 125/84-C.E. to these clearances, that question required fresh consideration after hearing the assessee.

Conclusion: The matter had to be reconsidered by the adjudicating authority, and the assessee succeeded on this issue.

Ratio Decidendi: Clearances by a 100% EOU under Para 6.9 of the EXIM Policy are not to be automatically treated as DTA sales, and the applicability of the relevant exemption notification must be independently examined on the facts of the clearance.

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