2015 (10) TMI 833 - HC - Customs

DTA sale by 100% EOU - wastage in production from Imported Blocks - Challenge the limit of disposal of reject/scraps - Revenue allowed only 2% - Development Commissioner had initially fixed ad hoc norms for wastage in production from Imported Blocks to the extent of 8.92% and wastage to the extent of 27.56% from indigenous blocks. Held That - By allowing only 2% of reject /waste disposal the Respondent is going against its own policy as enumerated in Clause 6.8( e) and 6.8 (d) of Foreign Trade Policy which is unjust and arbitrary in nature and does not stand any test of reasoning the actions of the Board had caused loss of revenue to the State - Impugned order is set aside - Appeal allowed in favour of assessee.

Summary

Issues:
Challenge to decision of Board of Approval regarding disposal of rejects/waste by Export Oriented Unit (EOU) under Foreign Trade Policy.

Analysis:
1. Background and Legal Framework: The petitioner, an EOU dealing with marble, sought relief against the decision of the Board of Approval limiting the disposal of rejects/waste to 2% of input quantity. The Foreign Trade Policy, 2009, under Chapter 6, provides for norms of sale of finished goods, rejects, waste, scrap, remnants, and by-products in the domestic market. The policy aims to encourage exports and boost economic growth by regulating foreign trade activities.

2. Petitioner's Contentions: The petitioner argued that the Board's decision violated Article 19(1)(g) of the Constitution and the Foreign Trade Policy provisions, specifically para 6.8(d) and (e). The petitioner highlighted that initially, higher limits for disposal of waste were permitted by the Development Commissioner, and the subsequent reduction to 2% was arbitrary and restrictive, affecting business operations.

3. Respondent's Defense: The respondent contended that the Board's decision was in line with the policy objectives to promote indigenous industries. Referring to a previous judgment, the respondent argued that the policy on Domestic Traffic Area (DTA) sales was not a vested right for the petitioner to challenge the decision limiting waste disposal to 2%.

4. Court's Analysis: The Court scrutinized the Board's decision-making process and found a lack of rationale for reducing the waste disposal limit to 2%. The Court emphasized the distinction between clauses 6.8(d) and 6.8(e) regarding the sale of rejects and waste, noting the impact of the restriction on the petitioner's business operations and revenue generation for the State.

5. Judgment: The Court found the restriction of 2% disposal unjust and arbitrary, setting aside the decisions of the Board made in 2012 and 2014. The Court directed the matter to be reconsidered by the Board within a month, emphasizing compliance with the Foreign Trade Policy clauses 6.8(d) and 6.8(e). No costs were awarded in the judgment.

This comprehensive analysis of the legal judgment addresses the issues raised by the petitioner, the respondent's defense, the Court's scrutiny of the decision, and the final judgment and directions given by the Court.