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2016 (11) TMI 1288 - ANDHRA PRADESH HIGH COURT

2016 (11) TMI 1288 - ANDHRA PRADESH HIGH COURT - TMI - Rebate claim - jurisdiction under Section 35-G of Central Excise Act - recovery of erroneously sanctioned refund claim - Held that: - The impugned recovery order passed by the Commissioner of Customs and Central Excise, Hyderabad IV confirming the recovery of erroneously sanctioned rebate was only a consequential order of recovery based on the orders which were challenged before the Delhi High Court. When the Delhi High Court set aside the .....

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eld that the issue of such demand is arbitrary and illegal. Even otherwise, if consequential recovery is permitted, on any ground, it amounts to reviewing the order of Delhi High Court. When the order of Delhi High Court attained finality, this Court while exercising the jurisdiction under Section 35-G of Central Excise Act, has no option except to confirm the order under challenge. - On an overall consideration of the entire material available on record, we find no ground to set aside the o .....

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-2016 - RAMESH RANGANATHAN AND M. SATYANARAYANA MURTHY JJ. Shri Gunaranjan Advocate, for the Respondent. Shri Manmadha Rao, SSC, for the Petitioner. ORDER (Per Hon ble Sri Justice M.Satyanarayana Murthy) The Commissioner of Customs, Central Excise and Service Tax, Hyderabad - IV Commissionerate preferred this appeal under Section 35(G) of the Central Excise Act, aggrieved by the order passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore in Final Order No .....

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of OLANZAPINE Tablets USP 20mg (in 30s pack/100s pack/500s pack) made under DEPB scheme and for ₹ 1,75,57,537/- on export of P or P Medicaments. The said claims were received in the Divisional Office on 18.07.2011 and 21.11.2011 respectively. The goods manufactured by the assessee were cleared for export to M/s Dr.Reddy s Laboratories Inc, 200, Somerset Corporate BLVD, Floor 7, Birdgewater, New Jersey, USA, their subsidiary unit for a value of ₹ 411,33,22,668/- and ₹ 34,09,23,0 .....

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e time of clearance from their factory for export was ₹ 3,13,95,000/- per lakh numbers of OLANZAPINE 20mg USP Tablets of 30s/100s/5002 pack; b) the reasons put forth by the assessee for such huge variation in cost price and sale price of OLANZAPINE 20 mg USP Tablets exported are that the product is meant for launching for the first time in the US market; M/s. Dr. Reddy s Laboratories Ltd expected to get 180 days of exclusivity to market for this particular product; DRL will be treated as o .....

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at they do not have domestic sale of the subject goods, Olanzapine 20mg in the local market. 4. Based on the above information, the Deputy Commissioner of Customs, Central Excise and Service Tax, Hyderabad L Division, Hyderabad considered the rebate claims filed by M/s. Dr. Reddy s Laboratories Ltd., as eligible by accepting the assessable value adopted by M/s Dr.Reddy s Laboratories Ltd., and accordingly sanctioned an amount of ₹ 21,11,04,089/- in cash and ₹ 1,75,48,551/- in cash an .....

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Commissionerate under Section 35E(2) of the Central Excise Act, 1944 and preferred two appeals before the Commissioner (Appeals - II), Hyderabad on 30.01.2012 on various grounds. 6. The Commissioner (Appeals) vide Order-in-Appeal No.02/2012 (H-IV) (D) CE dated 20.03.2012 and Orderin- Appeal No.03/2012 (H-IV) (D) CE dated 28.08.2012 allowed the appeals. 7. Thereupon, two show-cause notices were issued dated 03.05.2012 and 05.06.2012 to M/s Dr. Reddys Laboratories Ltd., calling for an explanation .....

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Laboratories Ltd., have filed two revision applications under Section 35EE of the Central Excise Act, before the Joint Secretary (Revision Application), Ministry of Finance, Government of India, New Delhi against the Order-in-Appeal No.02/2012 (HIV) (D) CE dated 20.03.2012 and Order-in-Appeal No.03/2012 (H-IV) (D) CE dated 28.08.2012. The Joint Secretary (Revision Application) while passing an order dated 19.12.2013 in Revision Application Nos.195/594 & 1700/12-RA opined that the appellate a .....

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the said order, the rebate claims of ₹ 8,91,295/- and ₹ 23,491/- were held admissible. The Commissioner (Appeals) by allowing the department s appeals implicitly held rebate claims inadmissible in toto. However, the said order No.53/2012 dated 30.10.2012 Commissioner of Central Excise, Hyderabad - IV has already held in his Order-in- Original dated 30.10.2012 that the applicants are eligible for rebate claims of ₹ 8,91,295/- and ₹ 23,491/- In these cases, Government ther .....

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1 and 03/2012 - Rebate dated 13.01.2012 sanctioned cash rebate of ₹ 21,11,04,089/- and ₹ 1,75,57,537/-. 11. The final order No.21039/2015 dated 28.04.2015 was passed by the CESTAT, Bangalore in appeal No. E/25509/2013 - DB filed by M/s. Dr. Reddy s Laboratories Ltd., against O-I-O No.53/2012-Adjn. (Commissioner) CE dated 30.10.2012, in the light of the above Delhi High Court s decision and the impugned order raising demand for recovery of the amount was set aside. 12. In the present .....

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derabad is erroneous and it is liable to be set aside and drawn the attention of this Court to the judgment of the Delhi High Court passed in Dr. Reddy s Laboratories Ltd. v. Union of India 2014 (309) ELT 423 (Del.) , 14. The CESTAT, South Zonal Bench, Bangalore passed order based on the judgment of the Delhi High Court, wherein the order of the Department of Revenue dated 19.12.2013 Order Nos.1412-1413-CX, under Section 35EE of the Central Excise Act was set aside while restoring the original r .....

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f the Department of Revenue dated 19.12.2013 - Order Nos.1412-1413-CX, under Section 35EE of the Central Excise Act is hereby set aside, along with any consequential demands raised for recovery of the rebate of excise duty. The Orders in- Original No.462/2011 - REBAT E and No.3/2012- REBAT E, dated 30.09.2011 and 13.01.2012 are accordingly restored. There shall be no order as to costs. 16. Operative portion of the order of the Delhi Court clearly indicates that the consequential demands raised b .....

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l order of recovery based on the orders which were challenged before the Delhi High Court. When the Delhi High Court set aside the consequential demands raised for recovery of the rebate of excise duty, the question of again issuing demand for recovery of ₹ 21,02,12,794/- and ₹ 64,66,041/- does not arise and issue of such demand is in utter disregard of the orders passed by the Delhi High Court. 18. As demands were issued for recovery of allegedly erroneously sanctioned rebate, the C .....

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