Tribunal allows appeal on duty rate in EOU case, stresses NFE requirements for supplies to Domestic Tariff Area.

The Tribunal set aside the order and allowed the appeal in a case concerning the rate of duty applicable in a 100% Export-Oriented Unit (EOU) after obtaining permission under Para 6.9(1)(b) of the EXIM Policy. It was found that the adjudicating authority failed to consider the benefit of Notification No. 125/84, crucial for the case, and did not properly assess the terms of Para 6.9 of the Policy for 2002-2007. The Tribunal emphasized the importance of considering supplies from EOU units to Domestic Tariff Area for fulfilling positive Net Foreign Exchange (NFE) requirements.

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Issues: Rate of duty applicable in 100% EOU after obtaining permission under Para 6.9(1)(b) of the EXIM Policy.

Analysis:
The judgment revolves around the determination of the rate of duty applicable in a 100% Export-Oriented Unit (EOU) after obtaining permission under Para 6.9(1)(b) of the EXIM Policy. The appellant paid duty at a rate of 6% based on their understanding, denying clearance to the Domestic Tariff Area (DTA) Sale Policy. The Tribunal noted that clearances under Para 6.9(b) cannot be equated with clearances under Para 6.8 of the EXIM Policy, as they serve different purposes. The appellants requested consideration of other notifications under the EOU Scheme, which the adjudicating authority failed to do. The Tribunal found that the adjudicating authority did not consider the benefit of Notification No. 125/84, which was crucial for the case. The Commissioner's finding that the goods were not for export overlooked the terms of Para 6.9 of the Policy for 2002-2007. The Tribunal emphasized that the term regarding supplies from EOU units to DTA should be considered for the fulfillment of positive Net Foreign Exchange (NFE). It concluded that clearances under Para 6.9 are general and not equivalent to clearances to DTA. Therefore, the application of Notification No. 125/84-C.E. needed to be addressed by the adjudicating authority after hearing the appellants. Consequently, the order was set aside, and the appeal was allowed.

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