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2023 (2) TMI 483 - CESTAT AHMEDABADEntitlement to interest - Jurisdiction of Commissioner (Appeals) - absense of protective show cause notice for recovery of interest - deposit made by the appellant during investigation for the refund of the same - whether the appellant is entitled for the interest on such deposit or otherwise? - HELD THAT:- As per the facts of the present case , the appellant have paid Rs. 25 Lacs Suo moto during the investigation of the case way back in January and February, 2007. Therefore, the amended provision of 35F /35FF prevailing in 2014 is not applicable in the case of any deposit made prior to enactment of Finance Act, 2014. The CBEC Circular No. 984/8/2014- CX dated 16.09.2014 was also issued with reference to the new provision of 35F/35FF therefore the Adjudicating Authority has gravely erred on applying said Circular. In the present case as regard submission of Learned Counsel that order of Commissioner (Appeals) is not correct and legal on the ground that the department has not issued protective show cause notice for recovery of interest amount which was already sanctioned and paid to the appellant, therefore the order is not sustainable - the Commissioner (Appeals) has decided the appeal against an appealable order passed by the Adjudicating Authority, the non issuance of protective show cause notice does not create any estoppels to the Learned Commissioner (Appeals) for passing the Order in Appeal. Therefore the contention the appellant is not acceptable. The recovery of the erroneous refund is the separate proceeding which is not the subject matter in the present appeal. Therefore the same cannot be dealt with in this case - this is not the case of recovery of erroneous refund whereas the Revenue before the Commissioner (Appeals) had challenged the sanction of interest of Rs. 5,55,093/-. Therefore, the judgment which is on recovery of erroneous refund are not relevant in the present case. The Learned Commissioner has correctly held that the appellant is not liable for interest of Rs. 5,55,093/- in terms of Section 35F - Appeal dismissed.
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