TMI Blog2005 (3) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... on the appellant, upon a finding that such supplies are not exempt from Central excise duty. 2.The contention of the ld. Counsel for the appellant is that under Notification No. 125/84 "all excisable goods produced and manufactured in a 100% EOU" are exempt from the whole of duty of excise. The only exception to this exemption is under the proviso to the Notification and that exemption is in respect of "goods if allowed to be sold in India." The contention of ld. Counsel is that "goods allowed to be sold in India" are the goods allowed by Development Commissioner to be sold to Domestic Tariff Area in terms of para 9.9 of Exim Policy and not goods supplied under para 9.10. Ld. Counsel has submitted that this position remains settled by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Exim Policy clearly brings out that the two disposals are very different in character. Para 9.9(a) is in regard to sale of rejects and para 9(b) is in respect of sales to Domestic Tariff Area. Both the sales are described as "subject to payment of appropriate duties." As against this, supplies to DTA under 9.10 are to parties who are otherwise entitled to import the material. We may read paras : The following supplies in DTA"9.10. shall be counted towards fulfilment of export performance: (a) Supplies effected in DTA in terms of Paragraph 10.2 of the Policy. (b) Supplies effected in DTA against payment in foreign exchange. (c) Supplies to other EOU/EPZ/EHTP/STP Units provided that such goods are permissible fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port promotion by the Customs and Export Promotion authority, the two authorities cannot run in opposite directions. Lack of clarity, if any, should be resolved in a manner facilitating the advancement of the policy and not in a manner that defeats public policy. 7.In the light of what is stated above, we are clear in our mind that duty demand is not sustainable. Once duty demand is not sustainable, there is no occasion for penalty also. The impugned order is therefore, set aside and the appeal is allowed with consequential relief, if any, to the appellant. We make it clear that we are not going into the alternate arguments advanced by the appellants since we are satisfied that the demand is contrary to the relevant legal provisions as di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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