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TMI Blog2015 (10) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... he Board had caused loss of revenue to the State - Impugned order is set aside - Appeal allowed in favour of assessee. - D.B. Civil Writ Petition No. 8928/2014 - - - Dated:- 5-8-2015 - Mr. Govind Mathur and Miss Jaishree Thakur, JJ. For the Petitioner : Mr. Dinesh Mehta, Advocate For the Respondent : Mr. Vishal Thakur, Advocate for Mr. A.K. Rajvanshy BY THE COURT:(Per Hon'ble Ms. Jaishree Thakur, J.) ORDER 1. The present writ petition has been filed seeking the following reliefs:- (1) The impugned decision dated 18.9.2014 taken by the Board of Approval in its Third Meeting (Annexure 11) may be modified as permitted under para 6.8(d) (e) of the Foreign Trade Policy. (2) The decision dated 23.11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roducts in domestic tariff area. Paras 6.8(d) and (e) of the policy are reproduced hereunder:- 6.8(d)- Unless specifically prohibited in LOP, rejects within an overall limit of 50% may be sold in DTA, on payment of duties as applicable to sale under sub-para 6.8(a) on prior intimation to Customs authorities. Such sale of rejects upto 5% of FOB value of exports shall not be subject to achievement of NFE. 6.8(e) Scrap/waste/remnants arising out of production process or in connection therewith may be sold in DTA, as per SION notified under Duty Exemption Scheme, on payment of concessional duties as applicable, within overall ceiling of 50% of FOB value of exports. Such sales of scrap/waste/ remnants shall not be subject to achieveme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t petition. 5. Mr. Mehta, learned counsel for the petitioner has argued that the action of the respondents in granting permission for disposal of rejects/waste only to the extent of 2% violates of Article 19(1)(g) of the Constitution of India as it places a restriction upon the trade of the petitioner as well as against the Foreign Trade Policy para 6.8 (d) (e) under which the authorities had initially permitted disposal of wastage of 8.92% of inputs of imported block and 27.56% of inputs in case of indigenous . As per clause 6.8(d) an EOU is permitted to sell rejects within an overall limit of 50% in the domestic market on payment of duties as applicable to a sale under sub-para 6.8(1) on prior intimation to the custom authorities. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in marble. As per clause 6.8.(e) of the Trade Policy , an EOU is allowed sale in the Domestic Traffic Area of Scrap/waste/ remnants arising out of production process as per Standard Input Output Norms notified under Duty Exemption Scheme, on payment of concessional duties as applicable but within overall ceiling of 50% of Free On Board (FOB) value of exports. The Directorate General of Foreign Trade (DGFT) from time to time issue notifications for fixation or addition of SION for different export products. In respect of items not covered by norms, Development Commissioner may fix ad hoc norms for a period of six months and within these period, norms should be fixed by Norms Committee. Ad hoc norms are to continue till such time norms are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be kept in mind that the EOU is dealing with marble and there will be wastage since the marble blocks will have natural defects. 10. Clause 6.8(d) pertains to sale of rejects of such products which were meant for export, within the Domestic Territory. The respondents have by the Board meetings dated 23.11.2012 and affirmed in appeal on 18.9.2014, informed the petitioner that he would be entitled to sell 2% as maximum permissible limit of sale of rejects in a domestic market wherein clause 6.8(d) specifically provides that rejects can be sold in the market subject to payment of duties. Clause does not mention taking permission for such sale of rejects. 11. We are of the opinion that the two Paragraphs namely 6.8 (d) and 6.8 (e) are di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the respondent Board is going against its own policy as enumerated in Clause 6.8( e) 6.8 (d) . The Board has not taken into account the fact that the petitioner industry would have no place to store its rejects and scrap if not allowed to sell in the Domestic Market. This will definitely hamper the growth and the production of the unit especially since investment in terms on finances will remain blocked with un disposed material be it rejects or waste. Moreover the Board has also lost sight of the fact that such EOU would have to pay duties as specified on such sales and thus also does generate revenue for the State. By not permitting disposal of rejects and sale as per the overall limits fixed and reducing to a mere 2% the Board has al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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