100% EOU carries on its business in India, its source of income is in India; technical service used by it is FTS

The Tribunal held as under:

1) Irrespective of the fact whether an India based business is one hundred per cent export oriented unit or not, it is still a business carried on in India, and it cannot, therefore, be covered by the first limb of exception envisaged in section 9(1)(vii)(b);

2) Even if entire products are sold outside India, the fact of such export by itself does not make business having been carried outside India;

3) Once the manufacturing facilities are outside India and the customers are also outside India, such a situation will indeed be covered by the exception visualized in section 9(1)(vii)(b), however, merely because the user of services was a one hundred per cent export unit, it couldn’t be said that the technical services were used "for the purpose of making or earning any income from any source outside India", and, accordingly, would be outside the ambit of fees for technical services under section 9(1)(vii) - Metro & Metro v. ACIT (2013) 39taxman 26 (Agra - Trib.)