2004 (7) TMI 417

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....n confirmed along with penalty under Rule 209. Appellant in appeal no. E/1595/04-Mumbai is Director of 100% EOU assessee-company and in E/1600/84 is the purchaser of the goods supplied by the 100% EOU under Para 9.10(b) of the EXIM Policy 1997-2002. They have been penalised under Rule 209A. 3. Commissioner relying on the decision in case of M/s. Himalaya International [2003 (154) E.L.T. 580 (Tri. - LB)] holding that duties would be liable under proviso to Section 3 of the Central Excise Act and the argument use of different words 'sale' in Para 9.9 & 'supply' as per 9.10(b) would not change the situation, and notification 125/84 is not attracted and benefit of notification 2/95 is not eligible, arrived at duty liability and penalty ....

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....e under the DTA Quota. These clearances under Para 9.10(b) are suigenris and are therefore exempted from duty by notification 125/84. Therefore at this prima facie stage full waiver and stay is called for. (c)        The Commissioners order has not taken cognizance of the Supreme Court decision in case of Siv Industries Ltd. [2000 (117) E.L.T. 281], wherein the term 'allowed to be sold' has been interpreted by the court and as recorded even by the Union of India in the affidavit filed in that case to the effect. "18....It also becomes apparent that in view of the EOU scheme as modified from time to time and corresponding amendments to Section 3 of the Act, the expression "allowed to be sold in India"....