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Commissioner of Customs, C. Ex., and Service Tax Versus Dr. Reddy’s Laboratories

2016 (11) TMI 1288 - ANDHRA PRADESH HIGH COURT

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 consequential demands raised for recovery of the rebat .....

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gal. 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 order passed by the CESTAT, South Zonal Bench, Bangalore .....

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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.21039/2015, dated 28.04.2015 in Appeal No. E/25509/201 .....

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00s 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 ₹ 34,09,23,058/- on payment of duty of ₹ 21,18,36,117/- and & .....

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#8377; 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 only player other than the innovator, M/s Eli Lilly in t .....

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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 and ₹ 8,986/- as credit to their CENVAT credit acco .....

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ise 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 as to why an amount of ₹ 21,18,36,117/- and ͅ .....

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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 authority while allowing the appeals filed by the depart .....

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- 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 therefore modified the impugned Orders-in-Appeal to the ext .....

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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 appeal, the order passed by the CESTAT, South Zonal Ben .....

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nd 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 rebate order passed by the Deputy Commissioner of Custom .....

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s.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 by the different authorities were set aside while restor .....

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