An administrative order based exclusively on a judicial precedent that is subsequently set aside by a higher court is unsustainable and must be quashed or remanded for reconsideration.

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.S. SUPEHIA

and

HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

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Approved for Reporting Yes No

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COMMON ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)

1. Since the issue involved in these petitions are one and the same, they are taken up for hearing together and are disposed of by this common judgment. Special Civil Application No. 21068 of 2016 is taken up as a lead matter.

2. At the outset, learned advocate appearing for the petitioners has submitted that the impugned order dated 15.11.2016 passed by the respondent – Assistant Commissioner of Central Excise is required to be quashed and set aside, in view of the subsequent decision rendered by the Division Bench of Madras High Court in the case of Raghav Industries Ltd. v. Union of India , (2022) 1 Centax 167 (Mad.). It is submitted that, the respondent authorities by exclusively placing reliance on the decision of the learned Single Judge of Madras High Court in the case of Raghav Industries Ltd. v. Union of India 2016 (334) E.L.T. 584 (Mad.) has rejected the rebate claim and also has imposed the penalty under Rule-27 of the Central Excise Rules, 2002. Thus, it is urged that the impugned order dated 15.11.2016 will not survive, in view of the subsequent decision of the Madras High Court setting aside the order passed decision by the learned Single Judge in the case of Raghav Industries Ltd. (supra).

3. Learned Senior Standing Counsel Mr.Deepak N. Khanchandani appearing for the respondents is unable to deny the subsequent development of setting aside of the order passed by the learned Single Judge of Madras High Court in the case of Raghav Industries Ltd. (supra) which has been relied upon by the respondent authorities, while rejecting the rebate claim of the petitioner, by the Division Bench of Madras high court.

4. We have perused the impugned order dated 15.11.2016 passed by the Assistant Commissioner rejecting the rebate claim of the petitioner and also simultaneously imposing the penalty under Rule-27 of the Central Excise Rules, 2002. It is noticed by us that, in the discussion and findings, the respondent authority has incorporated the entire judgment of the learned Single Judge of Madras High Court in the case of Raghav Industries Ltd. (supra) and ultimately, it is recorded that “Thus, the verdict of Hon’ble High Court in case of M/s. Raghav Industries Ltd. is squarely applicable to the present case as the basic issue to be decided is the same.” Thereafter, by referring to the principles of judicial discipline as enunciated by the Supreme Court in the case of Union of India v. Kamlakshi Finance Corporation Limited , 1991 (55) E.L.T. 433 (S.C.), the respondent authority has rejected the rebate claim.

5. Subsequently it appears that decision of learned Single Judge in the case of Raghav Industries Ltd. (supra) was before the Division Bench of Madras High Court by filing Writ Appeal No.429 of 2016 and allied matters, which were decided by the judgment and order dated 07.04.2022 by the Division Bench by recording thus:

“12. It is the assertive stand of the appellants that they have not availed double benefit as alleged by the respondent authorities all along. Reference was also made to the Notification No.68/2011-Cus. (N.T.) dated 22.09.2011, wherein, in paras 6 and 15, it is stated as follows:

"6. The figures shown under the drawback rate and drawback cap appearing below the column "Drawback when Cenvat facility has not been a