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TMI Blog2004 (7) TMI 417X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 liability on the manufacturer, the 100% EOU. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0(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" in proviso to Section 3(1) of the Act is applicable only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the appellants based on Supreme Court decision and Revenue stand in affidavit in the Supreme Court on a prima facie are in favour of the appellant. The decision relied by ld. Jt. CDR in the case of Virlon Textile Mills, 2002 (139) E.L.T. 371 which has been appealed in the Supreme Court [2002 (143) E.L.T. A176 (S.C.)] and those appeals are under consideration. We find no reason to apply the said decision at this stage. A prima facie case of waiver and stay has been made out in all then applications. Applications to be disposed by ordering the same. 6. The stay application in appeal filed by Revenue in Appeal No. E/3489/2002 Mumbai against the order of CCE (Appeals) holding no duty required to be determined in case of the same a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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